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HomeMy WebLinkAbout04-05-1995 CITY COUNCIL STAFF REPORTSSARATOGA CITY COUNCIL EXECUTIVE SUMMARY NO. 2S63 AGENDA IT MEETING DATE: APRIL 5, 1995 CITY MGR. ORIGINATING DEPT.: PUBLIC WORKS DEPT. HEA SUBJECT: Amendment No. 1 to Storm Water Program Management Agreement between City and West Valley Sanitation District Recommended Motion(s): Move to approve Amendment No. 1 to the Agreement and authorize the Mayor to sign on behalf of the City. Report Summary: Attached for Council's review and approval is a proposed amendment to the Storm Water Program Management Agreement between the City and the West Valley Sanitation District which was entered into last September. The amendment adds language to the Agreement which will enable the City to contract with the District to perform on going inspection, cleaning and maintenance of the City's storm drain system similar to work performed two years ago. In addition, the amendment anticipates the District and the City working together to develop a computer based mapping of the storm drain system to enable improved record keeping and investigation of accidental and illegal dumping incidents. As the City's Storm Water Discharge (NPDES) Permit requires such Public Agency Control Measures to be performed on a regular basis, and since the District is ideally suited to perform such activities on behalf of the City, staff recommends that the Council approve the amendment and authorize its execution by the Mayor. Also, the City Attorney has reviewed the proposed amendment and is satisfied with its contents. Fiscal Impacts: There are no automatic fiscal impacts as a result of approving the amendment as the City must still authorize the District to perform any contemplated work. However, one of the anticipated performance objectives of the amendment is for the District to inspect, clean and maintain one -half of the storm drain system annually such that the entire system (roughly 45 miles of pipe and 1500 inlet structures) is serviced every two years. It is also envisioned that the storm drain systems in certain areas such as commercial districts and the Village will be serviced on an annual basis. The estimated annual cost of the work contemplated by the amendment is $40,000. Sufficient funds to cover this expense are budgeted in Activity 20 (Storm Water Management) , Account 4510 (General Contracts) . Remember too that the Storm Water Program activities are funded through a surcharge on rubbish rates, and not through General Fund revenues. Advertising, Noticing and Public Contact: Nothing additional. Consequences of Not Acting on the Recommended Motions: The amendment would not be approved and the District could not perform the various activities described above. The City would be forced to find another vendor to perform these services. However, because of their very nature, it is unlikely that someone but another public agency could be found to perform the work as reliably and inexpensively as the Sanitation District. Follow Up Actions: The signed amendment will be transmitted to the District. Upon the District's approval of the amendment, the initial phase of work for this summer will be planned. Attachments: 1. Proposed Amendment No. 1 to the Storm Water Program Management Agreement. 2. Storm Water Program Management Agreement dated September 14, 1994. AGREEMENT BETWEEN THE CITY OF SARATOGA AND WEST VALLEY SANITATION DISTRICT REGARDING IMPLEMENTATION OF A STORM WATER POLLUTION CONTROL COORDINATION PROGRAM AGREEMENT, made and entered into this _%� day of 1994, by and between the City of Saratoga, a municipal corporation of the State of California, hereinafter referred to as "City," and West Valley Sanitation District of Santa Clara County, a county sanitation district organized and existing pursuant to the Health and Safety Code of the State of California, hereinafter referred to as "District." RECITALS: A. The City, along with twelve other cities, the County of Santa Clara, and the Santa Clara Valley Water District, have an NPDES permit issued by the San Francisco Bay Regional Water Quality Control Board which requires the City to regulate and manage its storm water system and participate in the Santa Clara Valley Nonpoint Source Pollution Control Program. B. The District, among other things, is empowered to construct, maintain, and operate a refuse and industrial waste disposal system in conjunction with its sanitary sewer system; and has entered into agreements with the Cities of Campbell and Monte Sereno and the Town of Los Gatos to provide storm water management program services. 1 C. The City wishes to participate in a coordinated West Valley Storm Water Pollution Control committee composed of five public agency members including the City, the District, the City of Campbell, the City of Monte Sereno, and the Town of Los Gatos, all of which are parties to a separate memorandum, and who are hereinafter referred to as "West Valley Dischargers." IT IS THEREFORE AGREED AS FOLLOWS: 1. Purpose. The purposes of this Agreement are as follows: a. To establish a coordinated Stormwater Pollution Control Program within the West Valley jurisdictions to assist the West Valley Dischargers in meeting state and federal requirements as well as local obligations to the Santa Clara Valley Nonpoint Source Pollution Control Program. b. To allocate equitably the costs of establishing and administering the West Valley Stormwater Pollution Control Program. 2. Parties to Agreement. The City of Saratoga and the West Valley Sanitation District, which is acting as an agent on behalf of the other West Valley Dischargers, agree to be parties to this agreement. 2 3. Term. The term of this Agreement shall commence upon the date of execution of this Agreement by both parties and shall terminate on June 30, 1995, and is automatically renewed for additional one -year periods unless either party, at least ninety (90) days prior to termination, gives written notice to the other that it does not wish to renew this agreement. This agreement can also be terminated at any time by written agreement of the parties or by operation of law. If not otherwise terminated, the agreement shall terminate on June 30, 2000. 4. Duties of the District. The duties of the District pursuant to this Agreement are to: a. Administer and coordinate implementation ofjoint West Valley Storm Water Pollution Control Programs, including but not limited to public education and outreach, information and assistance to West Valley residents and business owners, representing the West Valley Dischargers on the Management Committee and various sub - committees of the Santa Clara Valley NPS Pollution Control Program, coordinate with City staff and assist the West Valley cities in attaining compliance with their obligations under the NPDES permit, and prepare written reports to the Santa Clara Valley NPS Pollution Control Program. I b. Provide staff to carry out the duties listed under 4.a., including general staff supervision and administration. C. Perform any other duties, which are unspecified herein, but which are agreed to be performed in conjunction with the other West Valley Dischargers as determined in meetings of the West Valley Storm Water Pollution Control Committee. 5. Duties of the City. The duties of the City pursuant to this agreement are to: a. Establish policies, procedures and practices necessary to maintain compliance with the NPDES permit and the storm water management plan of the Santa Clara Valley NPS Pollution Control Program. b. Establish a budget and approve expenditures consistent with the terms of this Agreement. C. Adopt ordinances and enforce compliance by City residents and businesses with regards to storm water pollution. d. Perform any other duties, which are unspecified herein, but which are agreed to be performed in conjunction with the other West Valley Dischargers n as determined in meetings of the West Valley Storm Water Pollution Control Committee. 6. Fiscal Responsibilities. a. Allocation of Costs. West Valley Storm Water Pollution Control Program cost components include (1) implementation and equipment costs; and (2) annual operating costs. All costs of the West Valley program shall be allocated between the parties based upon proportional shares as detailed in Exhibit "A," attached. b. Payments. All payments shall be made to the West Valley Sanitation District and delivered to the following: West Valley Sanitation District District Manager and Engineer 100 East Sunnyoaks Avenue Campbell, CA 95008 C. Annual Operating Costs. 1. Definition. For purposes of this Agreement, "annual operating costs" shall include, but not be limited to, the costs of personnel, supplies, materials, utilities, equipment maintenance, repair, training, overhead, and other costs incurred in the annual operation of the West Valley Storm Water Pollution Control Program. 2. Annual Operating Costs - Fiscal Year 1994 -95. The annual operating costs for fiscal year 1994 -95 and each party's share of those costs are set forth in Exhibit "B," attached hereto and incorporated herein by this reference. Payments required to be paid under this subparagraph 6.c.2. shall be paid semi- annually to the order of West Valley Sanitation District and mailed or delivered to the District's office. Payments are due within thirty (30) days following invoice for that six -month period. 3. Annual Oneratinc7 Costs - Succeeding Fiscal Years. Prior to the commencement of any succeeding fiscal year, the West Valley Dischargers shall estimate the annual operating expenses for that fiscal year. The West Valley Storm Water Pollution Control Committee shall develop an operating budget for approval by the City Councils and the District Board of Directors. Not later than March 1 of the preceding fiscal year, West Valley Sanitation District shall notify each party of its share of the estimated operating expenses for the succeeding year which shall be allocated in the manner described in I subsection 6.a. and per Exhibit "A." Payments required to be paid under this subparagraph 6.c.3. shall be paid semiannually to West Valley Sanitation District and mailed or delivered to the District's office. Payments are due within thirty (30) days following invoice for that six -month period. 7. Indemnity. Each party agrees to indemnify, defend, and hold harmless the other party (its officers, agents, and employees) from any claim or demand by reason of any injury to or death of any person or damage to any property which may be made against that party (its officers, agents, and employees) caused by, or alleged to have been caused by, any act or omissions, negligent or otherwise, of the other under this agreement. 8. Miscellaneous Provisions. a. Amendments. This Agreement is amendable only by means of written instrument executed with express authorization by the City Council and the District Board of Directors. b. Disputes. If either party contends that the other has breached or is breaching this agreement or that this agreement is inequitable, its governing body shall so notify the.governing body of the 7 other party and both governing bodies (subject to all laws concerning the meetings of public agencies, governing bodies) shall meet jointly to resolve their differences. No action or suit concerning the terms or performance of this agreement shall be commenced, nor shall there be any act of rescission or notice of termination of this agreement other than the sort of notice provided in Paragraph 3 until the joint meeting has been held. The parties waive any statute of limitations as to any cause of action which is subject of the notification and meeting proceedings by this part during the time, not to exceed a reasonable time, required for the notice to be given and the meeting to take place. C. Successors and Assigns. The agreements, covenants, conditions, limitations, restrictions and undertakings contained in this agreement apply to and bind the successors and assigns of the parties. The rights and obligations of this agreement may not be assigned by any party without the written consent of the other. 8 IN WITNESS WHEREOF, the parties hereto have executed this agreement on the date set forth beside their signatures, to become effective on ��'�/ , 1994. Dated: CITY OF SARATOGA Fri ATTEST: APPROVED AS TO FORM: City Clerk City Attorney Dated: WEST VALLEY SANITATION DISTRICT OF SANTA CLARA COUNTY 'J, r-dn—, Chairperson, Board of Directors ATTEST: APPROVED AS TO FORM: ' Secretary District Counsel 9 EXHIBIT A WEST VALLEY STORM WATER POLLUTION CONTROL COORDINATOR PROGRAM ALLOCATION OF COSTS 1994 -95 1. Cost Sharing Schedule Total 5.35% 2. Biannual Invoices SCVNPS Pollution 1. Control Program City Percent Contribution Campbell (1) 1.880 Los Gatos (1) 1.7406 Monte Sereno (1) 0.14% Saratoga (1) 1.59% Total 5.35% 2. Biannual Invoices Total 1. Salary & Benefits $29,783 2. Fixed Costs 2,289 3. Supervision 2 X 879 4. Equipment Depreciation 250 5a. Clerical Support Actual b. Telephone /Fax it C. Supplies if d. Mileage it e. Equipment Repair /Maintenance 11 6. Start -up Costs it Total Proposed Biannual (2) $41,102 3. Allocation by Jurisdiction Campbell (1) $23,032 Los Gatos (1) 21,326 Monte Sereno (1) 1,771 Saratoga 19,489 Total (3) $65,618 Notes: Pro -Rated Basis for West Valley Program 35.1% 32.5% 2.70 29.70 100.0% 1. Pro -rated share of program costs for Campbell, Los Gatos, and Monte Sereno are funded through West Valley Sanitation District by separate agreements. 2. First biannual invoice will be pro -rated from date of program start -up through 12/31/94. 3. Total program budget pro -rated from assumed start -up date of 9/19/94. (See Exhibit B.) EXHIBIT B WEST VALLEY STORM WATER POLLUTION CONTROL COORDINATOR PROGRAM OPERATING BUDGET 1994 -95 1. Salary and Benefits Annual Pro -Rated 9/19/94 - 6/30/95 Salary $46,620 PERS 8,360 FICA 2,890 Medicare 675 SDI 391 Workers Comp 629 $59,565 46,965 2. Fixed Costs Liability Insurance 463 Utilities 450 Office rent 2,880 Janitorial 315 Building Insurance 255 Basic phone 216 4,579 3,610 3. Supervision WVSD Manager (6 hrs /mo @62.30) 4,485 3,536 WVSD Adm /Acct (3 hrs /mo @35.40) 1,274 1,005 4. Equipment Depreciation (5 -yr cycle) 500 394 5. Estimated cost Clerical support 5,000 Telephone /Fax 600 Supplies 1,000 Mileage 1,000 Equip. Repair /Maint 400 8,000 6,308 Subtotal: Annual Operating Costs $ 78,403 $ 61,818 6. Start -Up Costs (Estimated) Furniture & Equip 2,500 New Vinyl Floor 1,000 Office Sign 300 3,800 3,800 TOTAL 1994 -95 PROGRAM BUDGET $ 82,203 $ 65,618 SARATOGA CITY COUNCIL EXECUTIVE SUMMARY NO. 2,562- MEETING DATE: APRIL 5, 1995 ORIGINATING DEPT.: PUBLIC WORKS AGENDA ITEM 5 CITY MGR.: w w DEFT. HEAD: SUBJECT: 1994 Street Maintenance Program - Final Acceptance and Notice of Completion Recommended Motion(s): Move to accept the project as complete and authorize staff to record the Notice of Completion for the construction contract. Report Summary: All work on the 1994 Street Maintenance Program (slurry seals) has been completed by the City's contractor, Valley Slurry Seal Co., and inspected by City staff. The final construction cost for the project was $215,127.34, which is 5.3% above the awarded contract amount of $204,324.27. The additional costs were principally due to variances between bid quantities and final pay quantities for work items governed by unit prices. In order to close out the construction contract and begin the one year maintenance /warranty period, it is recommended that the Council accept the project as complete. Further, it is recommended that the Council authorize staff to record the attached Notice of Completion for the construction contract so that the requisite 30 day Stop Notice period for the filing of claims by subcontractors or material providers may commence. Fiscal Impacts: The ten percent.retention withheld from previous payments to the contractor will be released 30 days after recordation of the Notice of Completion assuming no Stop Notices are filed with the City. The adopted budget contains sufficient funds in Activity 31 (Street Maintenance), Account No. 4530 (Repair /Maintenance) , to cover the entire cost of the project including the executed change orders. Follow Up Actions: Staff will record the Notice of Completion for the construction contract and release the contract sureties and retention thirty days thereafter. Consequences of Not Acting on the Recommended Motions: The project would not be accepted as complete and staff would notify the contractor of any additional work required by the City Council before the project would be accepted as complete. Advertising, Noticing and Public Contact: Nothing additional. Attachments: 1. Contract Summary. 2. Notice of Completion. CONTRACT SUMMARY PROJECT: 1994 Street Maintenance Program CONTRACTOR: Valley Slurry Seal Co. CONTRACT DATE: 08/09/94 CONTRACT COMPLETION DATE: 02/28/95 ORIGINAL CONTRACT AMOUNT: $204,324.27 CHANGE ORDER AUTHORITY: $15,000 CHANGE ORDER INCREASE: $10,803.07 FINAL CONTRACT AMOUNT: $215,127.34 PERCENT +/- FROM ORIGINAL CONTRACT AMOUNT: +5.3% Recording requested by, and to be returned to: Saratoga City Clerk 13777 Fruitvale Avenue Saratoga, CA 95070 NOTICE OF COMPLETION NOTICE IS HEREBY GIVEN that the work agreed to be performed under the contract mentioned below between the City of Saratoga, a municipal corporation, whose address is 13777 Fruitvale Ave., Saratoga, CA 95070, as Owner of property or property rights, and the Contractor mentioned below, on property of the Owner, was accepted as complete by the Owner on the 5th day of April, 1995. Contract Number: N/A Contract Date: August 9, 1994 Contractor's Name: Valley Slurry Seal Co. Contractor's Address: P.O. Box 1620, West Sacramento, CA 95691 Description of Work: 1994 Street Maintenance Program This notice is given in accordance with the provisions of Section 3093 of the Civil Code of the State of California. The undersigned certifies that he is an officer of the City of Saratoga, that he has read the foregoing Notice of Acceptance of Completion and knows the contents thereof; and that the same is true of his own knowledge, except as to those matters which are therein stated on information or belief, and as to those matters that he believes to be true. I certify under penalty of perjury that the foregoing is true and correct. Executed at the City of Saratoga, County of Santa Clara, State of California on , 19 CITY OF SARATOGA BY: Larry I. Perlin Director Of Public Works ATTEST: Grace E. Cory, Deputy City Clerk Gov. Code 40814 SARATOGA CITY COUNCIL EXECUTIVE SUMMARY NO. Z 5 MEETING DATE: APRIL 5, 1995 ORIGINATING DEPT.: PUBLIC WORKS AGENDA ITEM t-- 6l )10 CITY MGR.: DEPT. HEAD: % SUBJECT: Final Map Approval for Tract No. 8685 (SD 94 -003) Recommended Motion(s) : 1. Move to adopt Resolution No. SD 94 -003 granting final map approval of Tentative Map Application No. SD 94 -003 for five lots at 19900 Cox Avenue. 2. Move to authorize the Mayor to execute the Subdivision Improvement Agreement. 3. Move to authorize the City Manager to execute the agreement waiving the right of the property owner to protest annexation into the Saratoga Landscaping and Lighting Assessment District LLA -1, and a future underground utility district. Report Summary: Attached is Resolution No. SD 94 -003 which, if adopted, will grant final map approval for five lots located at 19900 Cox Avenue. I have examined the final map and related documents submitted to me in accordance with the provisions of Section 14.40.020 of the Municipal Code and have determined that: 1. The final map substantially complies with the approved tentative map. 2. All conditions of the approved tentative map, as contained in Planning Commission Resolution No. SD 94 -003, have been completed or will be completed concurrent with development of the five lots. r 3. The Subdivision Map Act, the City's Subdivision Ordinance and all other applicable provisions of law have been complied with. 4. The final map is technically correct. Consequently, I have executed the City Engineer's certificate on the final map and have filed the final map with the City Clerk pursuant to Section 14.40.040 of the Municipal Code for action by the City Council. Fiscal Impacts: The fees and $32,640 subdivision. Follow Up Actions: subdivider's Title instructions. subdivider has paid $8,228.90 in Engineering in Park In -Lieu fees required for this The signed map will be released to the Company for recordation along with recording Consequences of Not Acting on the Recommended Motions: The final map must either be approved or rejected by the City Council. If the map is rejected, it would be returned to the subdivider with findings as to why the map was rejected. Attachments: 1. Resolution No. SD 94 -003 granting final map approval. 2. Subdivision Improvement Agreement. 3. Agreement waiving right to protest annexation into Saratoga Landscaping and Lighting Assessment District LLA -1, and a future underground utility district. 4. Planning Commission Resolution No. SD 94 -003 approving the tentative map with conditions. RESOLUTION NO. SD 94 -003 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SARATOGA APPROVING THE FINAL MAP OF SD 94 -003 19900 COX AVENUE (LDC INC.) The City Council of the City of Saratoga hereby resolves as follows: SECTION 1: Lots 1 - 5 as shown on that certain map of Tract No. 8685, prepared by Giuliani & Kull, Inc., dated October, 1994, and filed with the City Clerk of the City of Saratoga on April 5, 1995, are approved as FIVE (5) individual parcels. SECTION 2: All streets and easements shown on said map and offered for dedication to public use are hereby rejected on behalf of the public, save and except for public utility easements; and to the limited extent that any offers for public street purposes either expressly or implicitly include offers for easements for utility purposes along or beneath said street rights of way, then as to such express or implied offers of easements for public utility purposes, the same are hereby accepted on behalf of the public. The above and foregoing resolution was passed and adopted by the Saratoga City Council at a meeting held on the 5th day of April, 1995, by the following vote: AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST: Deputy City Clerk ■ NOW loalp RM ■■. mml MIN mail Now ■r ��■ �► PA �^ Mal IN i ■■■��r� �. �■.■ a ■ ■■ �.� !! _!■- ��1■SMh ■fin INI CONTRACT FOR THE IMPROVEMENT OF -SD 94 -003 AGREEMENT, made and entered into this day of 1995, by and between the CITY OF SARATOGA, a Municipal corporation of the State of California, hereinafter called "City ", and LDC, Inc., subdivider and Owner, hereinafter collectively called Subdivider: W I T N E S S E T H• WHEREAS, Subdivider is engaged in 'subdividing that certain tract of land known and designated as 19900 Cox Avenue situated in the City of Saratoga, County of Santa Clara, State of California; and WHEREAS, a final map of Tract 8685 has been filed with the City Clerk of the City of Saratoga for presentation to the Council for its approval, which map is hereby referred to and by said reference incorporated herein; and WHEREAS, Owner and Subdivider has requested approval of said final map prior to the completion of improvements of all streets, highways or public ways and sewer facilities which are a part of or appurtenant to the abovementioned subdivision, including, but without limiting the foregoing, the necessary paving, catch basins, pipes, culverts, storm drains, sanitary sewers where required, street trees and street signs where required, and including a water system and f ire hydrants acceptable to the San Jose. Water Works and the City of Saratoga, all in accordance with and as required by the plans and specifications for all of said improvements in or appurtenant to said subdivision, which plans and specifications were prepared by Giulliani & Kull. Inc. , Civil Engineer, approved by the City Engineer and now on file in the offices of the Clerk of said City and /or the City Engineer's Office of said City, and WHEREAS, the City Council of said City did on the day of 1995, adopt a Resolution approving said Final Map, rejecting certain dedications therein offered which rejection did not and does not, however, revoke the offers of dedication therein contained and requiring as a condition precedent to the future acceptance of said offers of dedication that the Subdivider improve the streets and easements thereon shown in accord with the standards of the City's Subdivision Ordinance, as amended, of the City of Saratoga and in accord with the improvement plans and specifications on file as hereinabove referred to, and requiring as a condition precedent to the release of said final map for recordation that the subdivider agree in writing to so improve said streets and easements in accord with this agreement, NOW, THEREFORE, in consideration of the above and in consideration of the City accepting all of said dedications after the hereinafter agreed to covenants on the part of the Owner and Subdivider have been complied with and in accord with Government Code Section 66462(a) of the State of California, it is hereby agreed as follows: 1. Subdivider at this cost and expense shall construct all of the improvements. and do all of the work hereinafter mentioned, all in accordance with and to the extent and as provided Iin the above mentioned plans. and specifications on file in the office of said City, for the construction of said improvements, in, for, or appurtenant to said subdivision, and all in compliance with the City's Subdivision Ordinance as amended and the laws of the State of California, and shall complete the same within one year from date hereof and shall maintain the same for a period of at least one year after the satisfactory completion of the same. 2. Subdivider shall, before the release of said final map by City and as condition precedent to recordation thereof, furnish to the City and file with the City Clerk a good and sufficient surety bond or bonds, money or negotiable bonds, in form to be approved by the City Attorney, securing the faithful performance by Subdivider of all work and the construction of. all improvements herein in this Agreement mentioned within time specified, and securing the faithful performance by Subdivider of the maintenance of said improvements for a period of at least one year after completion of the same, and for such additional period of time as may be necessary in order that Subdivider may cure and correct all 0 deficiencies of construction to the satisfaction of the City Engineer of the City of Saratoga (in all events at least $4,600.00 of said bond to be in cash, with the right of City to use the same in its discretion for emergency maintenance and repairs in addition to any other rights of use) the total amount 'of said bond to be in the sum of $ 46,000.00 ; and.also a good and .sufficient surety bond in form to be approved by the City Attorney securing the payment by subdivider of all bills for labor and materials incurred in the construction of any and all of said improvements, and the doing of all other work herein agreed to be done by the said Subdivider, the amount of said bond to be Forty Six Thousand Dollars ($ 46,000.00 ). 3. Subdivider does hereby expressly agree to indemnify and hold harmless the City and in their capacity as such, its councilmen, officers, boards, commissions and its employees, from any and all loss or damage, and from any and all liability for any and all loss or damage, and from any and all suits, actions, damages, or claims filed or brought by any and all person or persons because of or resulting from the doing by Subdivider or any and all things required of Subdivider by this contract, or because of or arising or resulting from the failure or omission by Subdivider to do any and all things necessary to and—required by this contract or 'by law, or arising or resulting from the negligent doing by Subdivider, his agents, employees or subcontractors of any and all things required to be done by this contract, or arising or resulting from any dangerous or defective condition arising or resulting from any of the above said acts or omissions of subdivider, his agents, subcontractors, or employees. Subdivider having heretofore certified, by the certificate upon the abovementioned subdivision map, that he can convey clear title to the land within said subdivision, and City having relied upon said certificate and the representation contained therein, the foregoing provisions of this paragraph are specifically made to apply to any destruction-or damage to or removal of utilities, water lines or pipe lines of any kinds, and any other improvement, whether said 4 destruction, damage or removal is required or caused by the plans or specifications or by direction of an officer, agent or employee of the City. 4. Subdivider shall, before the release of said final map by the City, and as a condition precedent to the recordation thereof, furnish to the City and file with the City Clerk certificates or policies of public liability and property damage insurance in form satisfactory to the City Attorney, and Subdivider shall at all times during the entire term of this agreement maintain the same in full force and effect, which policies shall insure the City of Saratoga, its Councilmen, officers, boards, commissions and employees against loss or liability for bodily injury and property damages arising or resulting from subdivider's operations and activities in the construction of any and all improvements mentioned in this agreement and the doing of any and all work mentioned in this agreement, within or outside the abovementioned subdivision, and /or arising or resulting from the doing or failure of subdivider to do all things required to be done pursuant to this agreement. Said policies of insurance shall cover.bodily injury and property damage on both an accident and occurrence basis, with completed operations coverage for one (1) year after completion and acceptance of improvements, and shall be in amounts _of not less -� than ONE MILLION DOLLARS ($1,000,000.00) for each person, ONE MILLION DOLLARS ($1,000,000.00) for each accident or occurrence and property damage coverage of ONE - HUNDRED THOUSAND DOLLARS ($100,000.00) for each accident or occurrence and property damage coverage of ONE - HUNDRED THOUSAND DOLLARS ($100,000.00) for each accident or occurrence. Said policies of insurance shall in addition contain the following endorsement:. "Other insurance - the coverage afforded by this insurance shall be primary coverage to the full limits of liability stated in the declarations. If the assured has _other insurance against the loss covered by this policy, that other insurance shall be excess insurance only, after the entire face value of this policy shall have been exhausted.by payment." 5 5. In consideration of City allowing Subdivider to connect said subdivision to certain existing or proposed out -of -tract storm sewer lines, and in consideration of City relieving Subdivider of any obligation which City might legally impose on Subdivider to acquire any right -of -way for, and /or to construct, any 'out -of -tract storm sewer drainage pipe lines and appurtenances which might reasonably be necessary to drain said subdivision and carry storm waters from said subdivision to natural drains, Subdivider shall, before the release of said final map by City and as a condition precedent to the recordation thereof, pay the City the sum of Zero dollars ($ 0 ). 6. In consideration of City agreeing to accept, in accord with this agreement, the in -tract storm drain lines and facilities constructed or to be constructed by Subdivider within or outside of said subdivision in accord with the.plans and specifications now on file with the City offices, including the streets and other easements in or beneath which said facilities lie, Subdivider shall, before the release of said final map by City and as a condition precedent to the recordation thereof, pay the City the sum of Zero Dollars ($ 0 ). 7. Subdivider shall, before the release of said final map by the City and as a condition precedent to the recordation thereof, pay to the City the sum of Four Thousand Six Hundred Dollars ($ 4,600.00 ) to be applied by City to the payment of expenses to be incurred by City for engineering and inspection services to be performed by the City in connection with said subdivision. 8. Upon Subdivider completing in accord with this agreement all of the improvements to be made and done by said Subdivider as hereinabove set forth and as shown on the plans and specifications on file as hereinabove referred to, and upon Subdivider having properly maintained the same for a period of at least one year after the completion of said improvements as hereinabove specified, and upon the Subdivider complying with all covenants and conditions on his or its part to be done and performed in accord with the within agreement, then and in that event, City agrees to rescind M. its rejection of the offers of dedication of streets and storm drain easements contained on the aforesaid final map, and at that time accept said offers of dedication. 9. Should the Subdivider and Owner hereinabove referred to not be the same person, firm or corporation, then this agreement shall only be effective upon both the subdivider and the Owner separately executing the same, and wherever the term Subdivider is used, the same shall include Owner and wherever the term Owner is used, the same shall include Subdivider. 10. This agreement shall be binding upon the heirs, personal representatives and assigns of Subdivider and Owner, and time is of the essence hereof, save and except that the City Council of the City of Saratoga may, but need not, extend any time or times for the doing or performing of any acts as required under the terms of this agreement by resolution, if in the opinion of the City Council any such delay is without fault on the part of the Subdivider and Owner. Execution of the within agreement by the Owner or Subdivider shall constitute an irrevocable authorization to City to insert the date of passage of the Council resolution approving the final map, and to insert the date of this agreement as of the date of such resolution. d f N 1 1 IN WITNESS WHEREOF, the parties hereto have set their hand the day and year first above written. CITY OF SARATOGA, a Municipal Corporation By: ATTEST: City Clerk APPROVED AS TO FORM: Mayor City Attorney By UVA (Owner, if different from Subdivider) — RECORDING REQUESTED BY: City Clerk City of Saratoga Civic Center, 13777 Fruitvale Avenue Saratoga, CA 95070 AND WHEN RECORDED MAIL TO: City Clerk City of Saratoga Civic Center, 13777 Fruitvale Avenue Saratoga, CA 95070 CITY OF SARATOGA, CALIFORNIA Application No. SD 94 -003 Owner: LDC. Inc. Address: 19900 Cox Avenue APN: 393 -17 -001 Actreement Of Waiver of Right To Protest Future Annexation Into And /Or Formation Of An Assessment District_- In Consideration of Certain Development Approval This is an agreement between the City of Saratoga (City) and LDC, Inc. (Owner) relating to Owner's waiver of right -to protest future annexation. Whereas, City has approved Application No. SD 94 -003 for development on Owner's real property, more particularly described in Exhibit "A ", attached hereto and incorporated herein, and Whereas, condition no. 14 & 16 of said development approval requires that Owner of the subject property shall enter into an agreement with the City waiving the right of Owner and any successors in interest of Owner to protest the formation of an 273 VIGREEVormaton. am February 3, 1995 1 assessment district, special taxing district, or other financing mechanism for the purposes of 1) maintaining landscaping along the street frontages of the subdivision installed by the owner; and /or 2) undergrounding- existing overhead utility facilities serving the subdivision, and /or the annexation of the subject property into such a district or mechanism. Now, therefore, the parties agree as follows: 1. This agreement is executed concurrently with that certain development approval described as SD 94 -001, dated 19_, between City and Owner relating to the making of improvements on Owner's real property described in Exhibit "All and commonly referred to as 19900 Cox Avenue, 393 -17 -001. 2. In consideration for approval of said development application by City, Owner agrees to expressly waive any and all rights Owner may have in the future to protest any proposed annexation of the subject property into or formation of an assessment district, special taxing district or other financing mechanism for the purposes of 1) maintaining landscaping along the street frontages of the subdivision installed by the owner; and /or 2) undergrounding existing overhead utility facilities serving the subdivision. 3. This agreement is an instrument affecting the title or possession of the real property described in Exhibit "A ". All the terms, covenants and conditions herein imposed shall run with the land and be binding upon and inure to the benefit of the successors in interest of Owner. 273\AGREE \For=ton.am February 31 1995 2 IN WITNESS WHEREOF, the parties have executed this agreement. Attest: City Clerk (Seal) Approved as to form: City Attorney (Acknowledgments) STATE OF CALIFORNIA CITY OF SARATOGA, a municipal corporation By: City Manager r owner ss _ — COUNTY OF SANT CI" On i ofl/r l in e year , efore e, Notary is per nall appeared Y , P y pp red Q , personally own to to be the of the Ci of Sarat a and known to me b the pe7aexecuted who executed t within i trument on behalf said munil corporation and acknow edged to me that id City of Sarato the ame. Notary Pub],.i'c 273\AGREE \Formton.aM C. K HAMILTON February 3, 1995 Comm. No. M649 DD t` NOTARY PUBIC - CALIFORNIA n SANTA CLARA COUNTY My Commission Expires July 2, 1997 R =A,- RESOLUTION NO. SD -94 -003 RESOLUTION APPROVING TENTATIVE MAP OF KENNEDY (CUMBERLAND ESTATES); 19900 COX AVENUE APN 393 -17 -001 WHEREAS, application has been made to the Advisory Agency under the Subdivision Map Act of the State of California and under the Subdivision Ordinance of the City of Saratoga, for Tentative Map approval of five (5) lots, all as more particularly set forth in File No. SD -94 -003 of this City; and WHEREAS, this Advisory Agency hereby finds that the proposed subdivision, together with the provisions for its design and improvement, is consistent with the Saratoga General Plan and with all specific plans relating thereto, and the proposed subdivision and land use is compatible with the objectives, policies and general land use and programs specified in such General Plan, reference to the Staff Report dated 9/28/94 being hereby made for further particulars; and WHEREAS, none of the conditions set forth in Government Code Sections 66474 (a) - (g) and 66474.6 exist with respect to said subdivision, and tentative approval should be granted in accord with conditions as hereinafter set forth; and WHEREAS, the Planning Commission has conducted a duly noticed public hearing at which time all interested parties were given a full opportunity.to be heard and to present evidence; NOW, THEREFORE, BE IT RESOLVED that the tentative map for the hereinafter described subdivision, which map is dated August, 22 1994 and marked Exhibit "A" in the hereinabove referred file,, be and the same is hereby conditionally approved. The conditions of said approval are as follows: Completed by Surveyor. 1. Prior to submittal of the Final Map to the City Engineer for examination, the owner (applicant) shall cause the property to be surveyed by a Licensed Land Surveyor or an authorized Civil Engineer. The submitted map shall show the existence of a monument at all external property corner locations, either found or set. The submitted map shall also show monuments set at each new corner location, angle point, or as directed by the Public Works Director, all in conformity with the Subdivision Map Act and the Professional Land Surveyors Act. Completed. 2. The owner (applicant) shall submit four (4) copies of a Final Map in substantial conformance. with the approved Tentative Map, along with the additional documents required by Section 14- 40.020 of the Municipal Code, to the Public Works Director for examination. The Final Map shall contain all of the information required in Section 14- 40.030 of the Municipal Code and shall be accompanied by the following items: File No. SD -94 -003; 19900 Cox Avenue a. One copy of map checking calculations. b. Preliminary Title Report for the property dated within ninety (90) days of the date of submittal for the Final Map. C. One copy of each map referenced on the Final Map. d. One copy of each document /deed referenced on the Final Map. e. One copy of any other map, document, deed, easement or other resource that will facilitate the examination process as requested by the City Engineer. Fees Paid. 3. The owner (applicant) shall pay a Map Checking fee, as determined by the City Engineer, at the time of submittal of the Final Map for examination. Bond Posted. 4. Interior monuments shall be set at each lot corner either prior to recordation of the Final Map or some later date to be specified on the Final Map. If the owner (applicant) chooses to defer the setting of interior monuments to a specified later date, then sufficient security as determined by the Public Works Director shall be furnished prior to Final Map approval, to guarantee the setting of interior monuments. All easements offered on 5 • The owner (applicant) shall provide Irrevocable Offers of Final Map. Dedication for all required easements and /or rights -of -way on the Final Map, in substantial conformance with the approved Tentative Map, prior to Final Map approval. Plans submitted and 6. The owner (applicant) shall submit engineered improvement approved. plans to the Public Works Director in conformance with the approved Tentative Map and in accordance with the design and improvement requirements of Chapter 14 of the Municipal Code. The improvement plans shall be reviewed and approved by the Public Works Director and the appropriate officials from other public agencies having jurisdictional authority, including public and private utility providers, prior to approval of the Final Map. a. Curb, gutter and sidewalk shall be constructed from existing curb, gutter, and sidewalk along Cumberland Drive to the Southern Pacific Railroad right -of -way along Cox Avenue. Fees paid. 7. The owner (applicant) shall pay an Improvement Plan Checking fee, as determined by the Public Works Director, at the time Improvement Plans are submitted for review. File No. 8D -94 -003; 19900 Cox Avenue Agreement signed. 8 • The owner (applicant) shall enter into an Improvement Agreement with the City in accordance with Section 14- 60.010 of the Municipal Code prior to Final Map approval. All securities provided. 9• The owner (applicant) shall furnish Improvement Securities in accordance with Section 14- 60.020 of the Municipal Code in the manner and amounts determined by the Public Works Director prior to Final Map approval. Insurance provided. 10. The owner (applicant) shall furnish a written indemnity agreement and proof of insurance coverage, in accordance with Section 14- 05.050 of the Municipal Code, prior to Final Map approval. All Utility commitments 11. Prior to Final Map approval, the owner (applicant) shall furnish the Public Works Director with satisfactory written provided. commitments from all public and private utility providers serving the subdivision guaranteeing the completion of all required utility improvements. All permits obtained. p 12. The owner (applicant) shall secure all necessary permits from the City and any other public agencies, including public and private utility providers, prior to Final Map approval. Fees paid. 13. The owner (applicant) shall pay the applicable Park and Recreation fee prior to Final Map approval. Agreement signed. 14. Prior to approval of the Final Map, the owner (applicant) shall execute an agreement with the City waiving the rights of the owner or any successive owners of any of the lots created by the subdivision to protest the annexation of the lots into the City's Landscaping and Lighting Assessment District LLA -1. Acknowledged. 15. Subdivision construction hours shall be restricted between 7:30 a.m. and 6:00 p.m., Monday through Friday, except in the event of an emergency which imperils public safety. The Public Works Director may grant an exemption upon his /her determination of an emergency. No construction work shall be permitted on legal holidays. Agreement signed. 16. Prior to Final Map Approval, the owner (applicant) shall enter into an agreement with the City waiving the rights of the owner, and any successive owners, to protest the formation of and /or annexation into an assessment district for the purposes of undergrounding utility lines serving the properties. Acknowledged. 17. All public and private improvements required for the project shall be completed and accepted for construction by the City Engineer, Planning Director, and /or the appropriate officials from other public agencies, including public and private File No. SD -94 -003; 19900 Cox Avenue Acknowledged. 22. Future development on Lots 1, 2, 31 4 and 5 shall utility providers, prior to final approval of any Building require Design Review approval and shall be limited to single story permits on any of the lots. Acknowledged. 18. Prior to issuance of any building permits for any of the five shall be determined at that time, based on current Zoning Ordinance (5) lots, the Cupertino Sanitary District shall review and reviewed by the Planning Commission was an informational approve the improvement plans. Acknowledged. 19. Domestic water shall be supplied by San Jose Water Company per Acknovil edged . 23 • Design review approval shall only be granted upon finding that the Santa Clara County Environmental Health Services Land the proposed structures are compatible in terms of scale and design with the existing adjacent residences, that Development Report. Acknowledged. 20. Site drainage shall be directed to the proposed storm drain proposals shall conform with current zoning and building regulations. Acknowledged. and all existing wells on site, if any, shall be abandoned per Landscape /Irrigation plan for the subdivision shall be Santa Clara Valley Water District standards. Acknowledged. 21. The owner (applicant) shall upgrade the public water main and Acknowledged. 25. Prior to Final Map approval, the City Arborist shall evaluate the possible impacts install additional fire hydrants as determined by the Central associated with the sound wall Fire District. Acknowledged. 22. Future development on Lots 1, 2, 31 4 and 5 shall require Design Review approval and shall be limited to single story structures not to exceed 22 feet in height. All building sites shall be left in a natural state until they receive Design Review approval. Appropriate building sites shall be determined at that time, based on current Zoning Ordinance regulations and City policy. The site development plan reviewed by the Planning Commission was an informational document only, intended to indicate the location of individual building envelopes. Acknovil edged . 23 • Design review approval shall only be granted upon finding that the proposed structures are compatible in terms of scale and design with the existing adjacent residences, that it is in conformance with the City's Residential Design Guidelines and that all of the necessary Design Review findings can be made. Development proposals shall conform with current zoning and building regulations. Acknowledged. 24 • The street frontage landscaping identified within the Landscape /Irrigation plan for the subdivision shall be incorporated within each individual Design Review proposal and shall be installed prior to issuance of Final Occupancy inspection. Acknowledged. 25. Prior to Final Map approval, the City Arborist shall evaluate the possible impacts associated with the sound wall construction, and recommend preservation measures for the affected trees. The sound wall shall be constructed prior to acceptance of subdivision improvements. Landscaping/ irrigation for the sound wall shall be installed prior to Final File No. SD -94 -003; 19900 COX AvenUe Inspection of said wall. Agreement of Waiver of 26. A Landscape .Maintenance Right to Protest Future agreement shall be recorded against each individuaandarcel (Lots 3, 4 Annexation Into LLA -1 and 5) to guarantee the preservation maintenance of sound landscaping. This Of Signed. shall be recorded prior exterior Map approval. If the anal District LLA -1, this district maintenance in he future to sound wall planting (subject to the determination uof the Public works Director) the Acknowledged. . 27. Pursuant to the City Arborist ' Arborist s report dated July 15, 1994, an inspection shall occur for each individual Design Review request (on lots where ordinance- protected trees to determine exist) the impacts on trees relative to construction. All other tree preservation measures shall occur prior to issuance of any permits on the site: a. Six (6) foot chain link or welded wire mesh protective fencing shall be placed around the trees under the dripline. Staff shall inspect the site to fence installation. ensure proper b. No ordinance protected trees shall be removed without first obtaining a tree Acknowledged. removal permit. 28. All building and construction related activities shall to New Development adhere and Construction Best Management Practices as adopted by the City for storm water pollution. the purpose of preventing Acknowledged. 29 • The owner (applicant) shall, upon the City's request indemnify and hold the City and its , defend, officers boards sions, employees and volunteers harmless from claim, andagainstmany action or proceeding to attack, set aside, annul this approval, void or or any of the proceedings, acts determinations taken, done or or made prior to such approval, Which is brought within the time specified 85.060 in Section 14 — of the Municipal Code. If a defense is City shall requested, the give prompt notice to the applicant of claim, action or any such proceeding, and shall cooperate fully in the defense thereof. Nothing herein shall prevent the City from participating in the defense, but in shall such event, the City pay its own attorney's fees and Acknowledged. costs. 30. Noncompliance with any of the constitute a violation of he this permit shall permit. B ca ble to estimate damages P Because it is impossi- violation, e City liquidated damages cur due to the of $ 50 shall be City per each day of the Payable to violation. this File No. SD -94 -003; 19900 Cox Avenue Section 1. Applicant shall sign the agreement to these conditions within 30 days of the passage of this resolution or said resolution shall be void. Section 2. Conditions must be completed within 24 months or approval will expire. Section 3. All applicable requirements of the State, County, City and other Governmental entities must be met. Section 4. Unless appealed pursuant to the requirements of Article 15 -90 of the Saratoga City Code, this Resolution shall become effective fifteen (15) days from the date,of adoption. PASSED AND ADOPTED by the City-of Saratoga Planning Commis- sion, State of California, this 22nd day of. November, 1994, by the following vote: AYES: Commissioners Abshire, Asfour, Kaplan, Murakami, Patrick & Siegfried NOES: None ABSENT: Commissioner Caldwell Chairman, Plannin Commission ATTEST- secretary, Planning Commission The foregoing conditions are hereby accepted. Signature of Applicant Date SARATOGA CITY COUNCIL EXECUTIVE SUMMARY NO. 2 S6, G AGENDA ITEM MEETING DATE: APRIL 5, 1995 CITY MGR.: ORIGINATING DEPT.: PUBLIC WORKS DEPT. HEAD: SUBJECT: Final Map Approval for Tract No. 8700 (PD 94 -002) E F Recommended Motion(s): 1. Move to adopt Resolution No. PD 94 -002 granting final map approval of Tentative Map Application No. PD 94 -002 for 108 lots (94 building sites) at 13150 Saratoga Avenue. 2. Move to authorize the Mayor to execute the Subdivision Improvement Agreement. 3. Move to authorize the City Manager to execute the agreement waiving the right of the property owner to protest annexation into the Saratoga Landscaping and Lighting Assessment District LLA -1. Report Summary: Attached adopted, will grant final building sites located at the final map and related with the provisions of Sec have determined that: is Resolution No. PD 94 -002 which, if map approval for 108 lots comprising 94 13150 Saratoga Avenue. I have examined documents submitted to me in accordance .tion 14.40.020 of the Municipal Code and 1. The final map substantially complies with the approved tentative map. 2. All conditions of the approved tentative map, as contained in Planning Commission Resolution No. PD 94 -002, have been completed or will be completed concurrent with development of the subdivision. 3. The Subdivision Map Act, the City's Subdivision Ordinance and all other applicable provisions of law have been complied with. 4. The final map is technically correct. Consequently, I have executed the City Engineer's certificate on the final map and have filed the final map with the City Clerk pursuant to Section 14.40.040 of the Municipal Code for action by the City Council. Fiscal Impacts: The subdivider has paid $93,150 in Engineering fees and $767,040 in Park In -Lieu fees required for this subdivision. Follow Up Actions: The signed map will be released to the subdivider's Title Company for recordation along with recording instructions. Consequences of Not Acting on the Recommended Motions: The final map must either be approved or rejected by the City Council. If the map is rejected, it would be returned to the subdivider with findings as to why the map was rejected. Attachments: 1. Resolution No. PD 94 -002 granting final map approval. 2. Subdivision Improvement Agreement. 3. Agreement waiving right to protest annexation into Saratoga Landscaping and Lighting Assessment District LLA -1. 4. Planning Commission Resolution No. PD 94 -002 approving the tentative map with conditions. REPORT TO THE PLANNING COMMISSION Application No. /Location: PD -94 -002; 13150 SARATOGA AVENUE Applicant /Owner: GREENBRIAR HOMES COMPANY Staff Planner: James Walgren Date: September 14, 1994 APN: 389 -11 -012, 013 & 014 Director Approval: / 1 a 1 z) v Saratoga tive. RESOLUTION NO. PD 94 -002 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SARATOGA APPROVING THE FINAL MAP OF PD 94 -002 13150 SARATOGA AVENUE (GREENBRIAR SARATOGA ROAD CO.) The City Council of the City of Saratoga hereby resolves as follows: SECTION 1: Lots 1 - 108 as shown on that certain map of Tract No. 8700, prepared by MacKay & Somps Civil Engineers, dated November, 1994, and filed with the City Clerk of the City of Saratoga on April 5, 1995, are approved as ONE - HUNDRED -EIGHT (108) individual parcels comprising NINETY -FOUR (94) individual building sites. SECTION 2: All streets and easements shown on said map and offered for dedication to public use are hereby rejected on behalf of the public, save and except for public utility easements; and to the limited extent that any offers for public street purposes either expressly or implicitly include offers for easements for utility purposes along or beneath said street rights of way, then as to such express or implied offers of easements for public utility purposes, the same are hereby accepted on behalf of the public. The above and foregoing resolution was passed and adopted by the Saratoga City Council at a meeting held on the 5th day of April, 1995, by the following vote: AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST: Deputy City Clerk CONTRACT FOR THE IMPROVEMENT OF PD 94 -002 AGREEMENT, made and entered into this day of 1995, by and between the CITY OF SARATOGA, a Municipal corporation of the State of California, hereinafter called "City ", and Greenbriar Saratoga Road Company, A California Corporation, subdivider and Owner, hereinafter collectively called Subdivider: W I T N E S S E T H• WHEREAS, Subdivider is engaged in subdividing that certain tract of land known and designated as _ 13150 Saratoga Avenue situated in the City of Saratoga, County of Santa Clara, State of California; and WHEREAS, a final map of Tract 8700 has been filed with the City Clerk of the City of Saratoga for presentation to the Council for its approval, which map is hereby referred to and by said reference incorporated herein; and WHEREAS, Owner and Subdivider has requested approval of said final map prior to the completion of improvements of all streets, highways or public ways and sewer facilities which are a part of or appurtenant to the abovementioned subdivision, including, but without limiting the foregoing, the necessary paving, catch basins, pipes, culverts, storm drains, sanitary sewers where required, street trees and street signs where required, and including a water system and fire hydrants acceptable to the San Jose Water Works and the City of Saratoga, all in accordance with and as required by the plans and specifications for all of said improvements in or appurtenant to said subdivision, which plans and specifications were prepared by MacKay & SOMPs , Civil Engineer, approved by the City Engineer and now on file in the offices of the Clerk of said City and /or the-City Engineer's Office of said City, and WHEREAS, the City Council of said City did on the day of 1995, adopt a Resolution approving said Final Map, rejecting certain dedications therein offered which rejection did not and does not, however, revoke the offers of dedication therein contained and requiring as a condition precedent E to the future acceptance of said offers of dedication that the Subdivider improve the streets and easements thereon shown in accord with the standards of the City's Subdivision Ordinance, as amended, of the City of Saratoga and in accord with the improvement plans and specifications on file as hereinabove referred to, and requiring as a condition precedent to the release of said final map for recordation that the subdivider agree in writing to so improve said streets and easements in accord with this agreement, NOW, THEREFORE, in consideration of the above and in consideration of the City accepting all of said dedications after the hereinafter agreed to covenants on the part of the Owner and Subdivider have been complied with and in accord with Government Code Section 66462(a) of the State of California, it is hereby agreed as follows: 1. Subdivider at this cost and expense shall construct all of the improvements and do all of the work hereinafter mentioned, all in accordance with and to the extent and as provided in the above mentioned plans and specifications on file in the office of said City, for the construction of said improvements, in, for, or appurtenant to said subdivision, and all in compliance with the City's Subdivision Ordinance as amended and the laws of the State of California, and shall complete the same within one year from date hereof and shall maintain the same for a period of at least one year after the satisfactory completion of the same. 2. Subdivider shall, before the release of said final map by City and as condition precedent to recordation thereof, furnish to the City and file with the City Clerk a good and sufficient surety bond or bonds, money or negotiable bonds, in form to be approved by the City Attorney, securing the faithful performance by Subdivider of all work and the construction of all improvements herein in this Agreement mentioned within time specified, and securing the faithful performance by Subdivider of the maintenance of said improvements for a period of at least one year after completion of the same, and for such additional period of time as may be necessary in order that Subdivider may cure and correct all 3 deficiencies of construction to the satisfaction of the City Engineer of the City of Saratoga (in all events at least $98,500.00 of said bond to be in cash, with the right of City to use the same in its discretion for emergency maintenance and repairs in addition to any other rights of use) the total amount of said bond to be in the sum of $_985,000.00 ; and also a good and sufficient surety bond in form to be approved by the City Attorney securing the payment by subdivider of all bills for labor and materials incurred in the construction of any and all of said improvements, and the doing of all other work herein agreed to be done by the said Subdivider, the amount. of said bond to be Nine- Hundred -Eighty-Five-Thousand Dollars ($ 985,000.00 ). 3. Subdivider does hereby expressly agree to indemnify and hold harmless the City and in their capacity as such, its councilmen, officers, boards, commissions and its employees, from any and all loss or damage, and from any and all liability for any and all loss or damage, and from any and all suits, actions, damages, or claims filed or brought by any and all person or persons because of or resulting from the doing by Subdivider or any and all things required of Subdivider by this contract, or because of or arising or resulting from the failure or omission by Subdivider to do any and all things necessary to and required by this contract or by law, or arising or resulting from the negligent doing by Subdivider, his agents, employees or subcontractors of any and all things required to be done by this contract, or arising or resulting from any dangerous or defective condition arising or resulting from any of the above said acts or omissions of subdivider, his agents, subcontractors, or employees. Subdivider having heretofore certified, by the certificate upon the abovementioned subdivision map, that he can convey clear. title to the land within said subdivision, and City having relied upon said certificate and the representation contained therein, the foregoing provisions of this paragraph are specifically made to apply to any destruction or damage to or removal of utilities, water lines or pipe lines of any kinds, and any other improvement, whether said 4 destruction, damage or removal is required or caused by the plans or specifications or by direction of an officer, agent or employee of the City. 4. Subdivider shall, before the release of said final map by the City, and as a condition precedent to the recordation thereof, furnish to the City and file with the City Clerk certificates or Policies of public liability and property damage insurance in form satisfactory to the City Attorney, and Subdivider shall at all times during the entire term of this agreement maintain the same in full force and effect, which policies shall insure the City of Saratoga, its Councilmen, officers, boards, commissions and employees against loss or liability for bodily injury and property damages arising or resulting from subdivider's operations and activities in the construction of any and all improvements mentioned in this agreement and the doing of any and all work mentioned in this agreement, within or outside the abovementioned subdivision, and /or arising or resulting from the doing or failure of subdivider to do all things required to be done pursuant to this agreement. Said policies of insurance shall cover bodily injury and property damage on both an accident and occurrence basis, with completed operations coverage for one (1) year after completion and acceptance of improvements, and shall be in amounts of not less than ONE MILLION DOLLARS ($1,000,000.00) for each person, ONE MILLION DOLLARS ($1,000,000.00) for each accident or occurrence and property damage coverage of ONE - HUNDRED THOUSAND DOLLARS ($100,000.00) for each accident or occurrence and property damage coverage of ONE - HUNDRED THOUSAND DOLLARS ($100,000.00) for each accident or occurrence,. Said policies of insurance shall in addition contain the following endorsement: "Other insurance - the coverage afforded by this insurance shall be primary coverage to the full limits of liability stated in the declarations. If the assured has other insurance against the loss covered by this Policy, that other insurance shall be excess insurance only, after the entire face value of this policy shall have been exhausted by payment." 9 5. In consideration of City allowing Subdivider to connect said subdivision to certain existing or proposed out -of -tract storm sewer lines, and in consideration of City relieving Subdivider of any obligation which City might legally impose on Subdivider to acquire any right -of -way for, and /or to construct, any out -of -tract storm sewer drainage pipe lines and appurtenances which might reasonably be necessary to drain said subdivision and carry storm waters from said subdivision to natural drains, Subdivider shall, before the release of said final map by City and as a condition precedent to the recordation thereof, pay the City the sum of Zero dollars ($ 0 ). 6. In consideration of City agreeing to accept, in accord with this agreement, the in -tract storm drain lines and facilities constructed or to be constructed by Subdivider within or outside of said subdivision in accord with the plans and specifications now on file with the City offices, including the streets and other easements in or beneath which said facilities lie, Subdivider shall, before the release of said final map by City and as a condition precedent to the recordation thereof, pay the City the sum of Zero Dollars ($ 0 ). 7. Subdivider shall, before the release of said final map by the City and as a condition precedent to the recordation thereof, pay to the City the sum of Sixty- Two - Thousand -One- Hundred Dollars ($ 62,100.00 ) to be applied by City to the payment of expenses to be incurred by City for engineering and inspection services to be performed by the City in connection with said subdivision. 8. Upon Subdivider completing in accord with this agreement all of the improvements to be made and done by said Subdivider as hereinabove set forth and as shown on the plans and specifications on file as hereinabove referred to, and upon Subdivider having properly maintained the same for a period of at least one year after the completion of said improvements as hereinabove specified, and upon the Subdivider complying with all covenants and conditions on his or its part to be done and performed in accord with the 6 within agreement, then and in that event, City agrees to rescind its rejection of the offers of dedication of streets and storm drain easements contained on the aforesaid final map, and at that time accept said offers of dedication. 9. Should the Subdivider and Owner hereinabove referred to not be the same person, firm or corporation, then this agreement shall -only be effective upon both the subdivider and the Owner separately executing the same, and wherever the term Subdivider is used, the same shall include Owner and wherever the term Owner is used, the same shall include Subdivider. 10. This agreement shall be binding upon the heirs, personal representatives and assigns of Subdivider and Owner, and time is of the essence hereof, save and except that the City Council of the City of Saratoga may, but need not, extend any time or times for the doing or performing of any acts as required under the terms of this agreement by resolution, if in the opinion of the City Council any such delay is without fault on the part of the Subdivider and Owner. Execution of the within agreement by the Owner or Subdivider shall constitute an irrevocable authorization to City to insert the date of passage of the Council resolution approving the final map, and to insert the date of this agreement as of the date of such resolution. IN WITNESS WHEREOF,, the parties hereto have set their hand the day and year first above written. ATTEST: City Clerk APPROVED AS TO FORM: City Attorney CITY OF SARATOGA, a Municipal Corporation By: Mayor By: ivider 6vA4ee--sv*J By: (Owner, if different from Subdivider) RECORDING REQUESTED BY: City Clerk City of Saratoga Civic Center, 13777 Fruitvale Avenue Saratoga, CA 95070 AND WHEN RECORDED MAIL TO: City Clerk City of Saratoga Civic Center, 13777 Fruitvale Avenue Saratoga, CA 95070 CITY OF SARATOGA, CALIFORNIA Application No. PD 94 -002 Owner: Greenbriar Saratoga Road Company A California Corporation Address: 13150 Saratoga Avenue APN: 389 -11 -012_, 389 -11 -013 & 389 -11 -014 Agreement Of Waiver of Right To Protest Future Annexation Into And /Or Formation Of An Assessment District - In Consideration of Certain Development Approval This is an agreement between the City of Saratoga (City) and Greenbriar Saratoga Road Company A California Corporation (Owner) relating to Owner's waiver of right to protest future annexation. Whereas, City has approved Application No. PD 94 -002 for development on Owner's real property, more particularly described in Exhibit "A ", attached hereto and incorporated herein, and Whereas, condition no. 27 of said development approval requires that Owner of the subject property shall enter into an 2MAGREEVonmton.am March 23, 1995 1 agreement with the City waiving the right of Owner and any successors in interest of Owner to protest the formation of an assessment district, special taxing district, or other financing mechanism for the purposes of maintaining landscaping along the street frontages of the subdivision installed by the owner; and /or the annexation of the subject property into such a district or mechanism. Now, therefore, the parties agree as follows: 1. This agreement is executed concurrently with that certain development approval described as PD 94 -002, dated 19_, between City and Owner relating to the making of improvements on Owner's real property described in Exhibit "A" and commonly referred to as 13150 Saratoga Avenue, APN: 389 -11 -012. 389 -11 -013 & 389 -11 -014. 2. In consideration for approval of said development application by City, Owner agrees to expressly waive any and all rights Owner may have in the future to protest any proposed annexation of the subject property into or formation of an assessment district, special taxing district or other financing mechanism for the purposes of maintaining landscaping along the street frontages of the subdivision installed by the owner. 3. This agreement is an instrument affecting the title or possession of the real property described in Exhibit "A ". All the terms, covenants and conditions herein imposed shall run with - the land and be binding upon and inure to the benefit of the successors in interest of Owner. 273WREEVormton. anx March 23, 1995 2 IN WITNESS WHEREOF, the parties have executed this agreement. CITY OF SARATOGA, a municipal corporation By: Attest: City Clerk (Seal) Approved as to form: City Attorney (Acknowledgments) STATE OF CALIFORNIA ) ) ss COUNTY OF SANTA CLARA ) City Manager By: On this day of , in the year before me, Notary Public, personally appeared personally known to me to be the of the City of Saratoga and known to me to be the person who executed the` within instrument on behalf of said municipal corporation, and acknowledged to me that said City of Saratoga executed the same. Notary Public 273\AGREE \For=ton.anx March 23, 1995 3 RESOLUTION NO. 94 -44 A RESOLUTION OF TEX CITY COUNCIL OP TIM CITY OF SARATOGA GRANTING IN PART AND DENYING IN PART AN APPEAL FROM THE DECISION OF THE PLANNING C=aSSION RELATING TO PLANNED DEVELOPNENT -FINAL PLAN APPROVAL (INCLUDING TENTATIVE sUBDIVISION NAP APPROVAL AND DESIGN REVIEW APPROVAL) GREENBRIAR HOMES Cm10pANY; 13150 SARATOGA AVENUE WHEREAS, Greenbriar Homes Company, the applicant had made an application for Planned Development -Final Plan approval to construct 94 single - family detached homes at the 24.44 acre former Paul Masson Winery site located at the northeast corner of Saratoga Avenue and Route 85; and WHEREAS, on September 28, 1994, the Planning Commission of the City of Saratoga held a duly - noticed public hearing on said application at which time all interested parties were given a full opportunity to be heard and to present evidence and following the conclusion thereof, the Planning Commission voted to grant the final development plan application; and placed by the applicant Commissionlon the approval to conditions etCity Council; and WHEREAS, on October 19, 1994, the City Council conducted a de novo public hearing on the appeal, which included a review of the entire Planned Development -Final Plan application, at which time any person interested in the matter was given a full opportunity to be heard; and WHEREAS; the City Council reviewed and considered the staff report, minutes of proceedings conducted by the Planning Commission relating to the application, and the written and oral evidence presented to the City Council in support of and in opposition to the appeal. NOW, THEREFORE, be it resolved by the City Council of the City of Saratoga as follows: 1. By split vote of the City Council (Councilmember Jacobs Acknowledged. voting in Opposition), the appeal from the Planning Commission is hereby granted in part and denied in part, to wit: the applicant has met the burden of proof required to support the application for Planned Development -Final Plan approval with the conditions as modified and hereinbelow set forth, and the following findings have been determined: 1 (a) That the development. subdivision map, is consisincluding the tentativ tent with the General Pla Property. designation, Zoning and Specific Plan for thi (b) That the development provides for an integrated an harmonies system Of land uses and intensities. land us. (c) That the development will be compatible with th, surrounding neighborhood. (d) That all adverse environmental impacts of the development can be adequately mitigated, or there are overriding considerations for approval of the development notwithstanding such impacts. (e) That the public facilities constructed as existing or to be the applicant will be adequate tc service the development. (f) That the development will not be detrimental to the Public health, safety or general welfare. (g) That none of the conditions set forth in subsections (a) through (q) with O! Government Code $ 66474 exist respect to the proposed subdivision, and tentative subdivision map approval should be granted in accordance with conditions as hereinafter set forth. 2. After careful consideration of the site plan, exhibits submitted in ccns�ection with this other matter, the application of Greenbrier Homes Company for Planned Development -Final Plan approval be and the same is hereby granted subject to the following conditions: Co Acknowledged and approved. (1) The developExhibit ment shall be located and constructed as shown on in "A" and nBp' with the required modifications contained this Resolution. CC &R' s approved. (2) Prior to finalized Covenants O a Final Map' or Phased Final Map, reviewed and approved ' Codes and Restrictions (CC &R's) shall be Public Works De by the Community Development Director, and the City Attorney. Approved and included in (3) Pursuant to the Planning CC &R' s . determination to a Commission's conditional Declaration, the following restrict ons shall at apply Negative be included in the CC &R's: PPlY and shall a. The maximum average square footage of all 94 homes, excluding garages, shall not exceed 3,035 sq. ft. b. No future additions, or additional enclosed structures, shall be permitted beyond the approved homes /square footages. Unenclosed structures, such as arbors, gazebos and lattice work, are permitted subject to current City Code setback and height requirements. c. Individual lot impervious coverage shall be limited to a maximum of 60 percent. Agreement approved. (4) Prior to approval of a Final Map, or phased Final Map, a Development Agreement shall be entered into, and approved by the City Council based on a recommendation by the Planning Commission, ensuring the following: a. The development is constructed as approved. b. Improvement requirements, such as dedicating the common open space for public use, paying the approximately $767,000 in required public park maintenance fees and contributing towards the various intersection and median improvements, would be guaranteed. C. Improvements would occur in a sequence beneficial to the community. For example, perimeter landscape and pedestrian improvements would be required to be completed prior to issuance Final Occupancy approval for any of the new homes (or model homes). Acknowledged. (5) Prior to submittal for Grading or Building Permits, the following shall be submitted to Community Development Department staff in order to issue a Zoning Clearance: a. Four (4) sets of complete construction plans incorporating this Resolution as a separate plan page. b. One (1) set of engineered grading and drainage plans, also incorporating this Resolution as a separate plan page. C. All applicable requirements/ conditions of the Resolution (e.g. modifications to plans) shall be noted on the plans. d. Revised plans indicating that: i. No portion of the east property line retaining walls /fences exceed 6 ft. in height. ii. Lots 90 -93 shall be "staggered" to match Lots 1 -8 per Exhibit "B ", incorporated by reference. 3 The soundwall on Lot 13 is setback 15 -25 ft. from the McFarland Ave. pedestrian access to the east property line. iv. Windows shall be installed in all garage doors. V. Shutters and planter boxes shall be included on the rear elevations of residences backing onto Saratoga Avenue and McFarland Avenue. e.; If retaining walls are utilized line, the City Arborist shall Plans to ensure that no property f. along the east property review and approve the line trees are damaged. Documentation. verifying that future home construction is in compliance with the recommendations of the Traffic Noise Assessment Study, Exhibit "C ", incorporated by reference. At a minimum, this documentation shall show that the homes on Lots 1 -9, 32 -37, 71 -74, 85 -89 and 9o- 94 incorporate noise attenuation mitigation . These mea sures hall include building shell andwindow noise attenuation construction. Acknowledged. (6) Prior to the issuance of a Grading or Building Permit, Department Directoapplicant shall submit the following for Community Development r- review and approval: a. Final landscape plans for the Saratoga Ave. and McFarland Ave. perimeter landscaping, the internal "loop" linear open space and the public open space /park abutting the Route 85 soundwall. b• A minimum of one 24 inch box and one 15 gal. native or other suitably drought tolerant tree shall also be shown to be planted, with irrigation, within the rear yards of each lot along .McFarland and Saratoga Avenues and Montrose Street. These trees /irrigation shall be planted/ installed prior to Final Occupancy approval of each home. A security deposit may be posted in -lieu of actual planting to assure planting on•a timely basis. Additionally, the CC &R's shall require each home owner not along McFarland and Saratoga Avenues or Montrose Street to plant a minimum of two trees in their rear yards. C. Landscaping shall be of native and drought tolerant species in conformance with the City's xeriscape guidelines and Water Efficient Landscape Ordinance. Acknowledged. (7) Height of structures shall not exceed 26 feet. Acknowledged. (8) No retaining wall shall have an exposed height that exceeds 5 ft. In addition, no fence or wall shall exceed six (6) feet in height and no fence or wall located within the required front yards shall exceed three (3) feet in height. This restriction does not apply to the eight (8) foot approved soundwall along Saratoga Ave. Acknowledged. (9) No ordinance size tree shall be removed without first obtaining a Tree Removal Permit. Acknowledged. (10) Exterior colors shall be medium earthtone as reviewed and approved by the Planning Commission.• PUBLIC WORKS DEPARTMENT Completed by Surveyor. (11) Prior to submittal. of a Final Map or phased Final Map to the City Engineer for examination, the owner (applicant) shall cause the property within the distinctive border on the map to be surveyed by a duly Licensed Land Surveyor or Civil Engineer. The submitted map(s) shall show the existence of a monument at all external property corner locations, either found or set. The submitted map(s) shall also show monuments set at each new corner location, angle point, or as directed by the City Engineer, all in conformity with the Subdivision Map Act and the Professional Land Surveyors Act. Completed. (12) ,The owner (applicant) shall submit four (4) copies of a Final Map or each phased Final Map in substantial conformance with the approved Tentative Map, along with the additional documents required in Section 14- 40.020 of the Municipal Code, to the City Engineer for examination. The Final Map(s) shall contain all of the information required by Section 14- 40.030 of the Municipal Code and shall be accompanied by the following items: a. One copy of map checking calculations. b. Preliminary Title Report for the property dated within ninety (90) days of the date of submittal of the Final Map(s). C. One copy of each map referenced on the Final Map(s). d. One copy of each document /deed referenced on the Final Map(s). e. One copy of any other map, document, deed, easement or other resource that will facilitate the examination process as requested by the City Engineer. Fees Paid. (13) The owner (applicant) shall pay a Map Checking fee, as determined by the City Engineer, at the time of submittal of each Final Map for examination. 5 Bond posted. (14) Interior monuments shall be set at each lot corner either prior to recordation of a Final Map or some later date to be Agreement signed. specified on a Final Map. If the owner (applicant) chooses to defer the setting of interior monuments to a specified later date, then sufficient security as determined by the City All securities provided. Engineer shall be furnished prior to Final Map approval, to guarantee the setting of interior monuments. All easements offered on (15) The owner (applicant) shall provide Irrevocable Offers of Final Map. Dedication for all required easements and /or rights of way on the Final Map or initial phase Final Map, in substantial conformance with the approved Tentative Map, prior to any Final Map Insurance provided. approval. Plans submitted and (16) The owner (applicant) shall submit engineered improvement approved. plans and supporting technical documentation, including a Storm Water Pollution Prevention Plan, to the City Engineer in All utility commitments conformance with the approved Tentative Map and in provided. accordance with the design and improvement requirements of Chapter 14 of the Municipal Code. The improvement plans shall be reviewed and approved by the City Engineer and the appropriate officials from other public agencies having Jurisdictional authority, including public and private utility providers, prior to approval of the Final Map or each phased Final Map. Fees paid. (17) The owner (applicant) shell pay an Improvement Plan Checking fee, as determined by the City Engineer, at the time Improvement Plans are submitted for review. Agreement signed. (18) The owner (applicant) shall enter into an Improvement Agreement with the C ty in accordance with Section 14- 60.010 of the Municipal Cade to prior each Final Map approval. All securities provided. (19) The owner (applicant) shall furnish Improvement Securities in accordance with Section 1.4- 60.020 of the Municipal Code in the manner and amounts determined by the City Engineer prior to each Final Map approval. At least 10% of the Faithful Performance security shall be in the form of a cash deposit to be held by the City, up to half of which may be in the form of an instrument pledged to the City and which is readily convertible to cash by the City. Insurance provided. (20) The owner (applicant) shall furnish a written indemnity agreement and proof of insurance coverage, in accordance with Section 14- 05.055 of the Municipal Code, prior to each Final Map approval. All utility commitments (21) Prior to each Final Map approval, the owner (applicant) shall provided. furnish the City Engineer with satisfactory written commitments from all public and private utility providers 7 serving the subdivision guaranteeing the completion of all required utility improvements. All permits obtained. (22) The owner (applicant) shall secure all necessary permits from the City and any other public agencies, including public and private utility providers, prior to each Final Map approval. Fees paid. (23) The owner (applicant) shall pay the applicable Park and Recreation fee prior to each Final Map approval. Acknowledged. (24) Notice of construction shall be distributed to all residents within 500 ft. of the property at least five calendar days prior to commencement of any construction activity in such form as determined by the Community Development Director. Suitable documentation that this condition has been satisfied shall be provided to the Public Works Director prior to receiving approval to commence construction activity. Plan approved. (25) Individual lot pad grading, necessary to achieve proper site drainage, shall be permitted to occur concurrently with road construction improvements once Final Map or phased Final Map approval is granted. The final grading and drainage plan for road construction and individual lot pads shall be reviewed and approved by the City Engineer prior to issuance of Final Map or phased Final Map approval. Acknowledged. (26) Construction hours shall be restricted to between 7:30 a.m. and 6:00 p.m., Monday through Friday (legal holidays excluded), except in the event of an emergency which imperils the public safety. The City Engineer may grant an exemption upon his determination of an emergency. Agreement signed. (27) Prior to approval of the Final Map or of a phased Final Map, the owner (applicant) shall execute an agreement with the City waiving the rights of the owner or any successive owners of any of the lots created by the subdivision to protest the annexation of the lots into the City's existing Landscaping and Lighting Assessment District for the purpose of providing for the maintenance of the common area and perimeter landscaping created by the subdivision. The agreements) shall also waive the rights of the owner or any successive owners to petition for detachment from the District after annexation. The agreement(s) shall be recorded concurrently with the Final Map(s) and reference to the agreement(s) shall appear in the owner's Certificate(s) on the Final Map(s). Approval letter recieved (28) The applicant's geotechnical consultant shall review and . approve all geotechnical aspects of the subdivision plans (is., site preparation and grading, surface and subsurface drainage improvements, and design parameters for foundations, retaining walls, pools and pavement) to ensure that his recommendations have been properly incorporated. 7 Acknowledged. (29) The results of the Geotechnical Plan Review shall be summarized by the geotechnical consultant in a letter and submitted to the City for review and approval by the City Engineer prior to approval from the City Engineer to begin subdivision construction. Acknowledged. (30) The geotechnical consultant shall inspect, test (as needed) , and approve all geotechnical aspects of .the project construction. The inspections shall include, but not necessarily be limited to: site preparation and grading, demolition and removal of existing structures and unsuitable materials, site surface and subsurface drainage improvements, and excavations for roadways and retaining walls prior to the placement of baserock, fill, steel and concrete. Acknowledged. (31) The geotechnical consultant shall prepare a report describing the as -built conditions of the project construction. The report shall include a map (e.g., corrected or revised drainage plan) that portrays the extent of any grading (cuts and fills), drainage improvements, and retaining walls. This final report shall also include the locations and data from field density tests anal any new information disclosed during construction which may have an impact on development of any lots within the subdivision. Acknowledged. (32) A report describing the results of field inspections, and the report of as -built conditions, shall be submitted to the City to be reviewed by the City Engineer prior to Construction Acceptance of the subdivision improvements. Fees paid. (33) Prior to approval of any Final Map, and pursuant to Section 13 of the Performance Agreement dated February 6, 1989, and subsequent Cooperative .Agreement No. 2 -SAR dated April 7, 1993, both agreements tetween the City and the Santa Clara County Traffic Authority, the owner (applicant) shall pay to the City the sum of $169,195 for the soundwall along Route 85, and $60•,000 for the traffic signal at the Saratoga Ave. entrance to the property which the City will, in turn, reimburse in full to the Traffic Authority as full compensation for the cost of designing and installing these improvements. Notice filed. (34) Prior to approval of any Final Map, the owner (applicant) shall file the requisite Notice of Intent with the State Water Resources Control Board to ensure construction activity associated with the development will be covered under the General Construction Activity Storm Water permit adopted by the Board on August 20, 1992. Evidence of coverage under the Permit shall be presented to the Public Works Director prior to the start of any construction. Street names approved. (35) A name for each street in the development shall be approved by the Heritage Preservation Commission and shall appear on 8 each final map. The words "Vineyard" or •oak" shall not be permitted in any street name. Fee paid. (36) Prior to approval of the initial phase final map, the owner (applicant) shall contribute $30,000 towards the cost of the southwest quadrant of the Saratoga Ave. /Fruitvale Ave. intersection. Any amount of the contribution remaining after the improvements have been installed shall be refunded to the owner (applicant) or successors in interest, The City shall enter into an agreement with the owner (applicant) guaranteeing a proportional.reimbursement of the cost of the improvements within 10 years from the date of approval of the initial phase final map from any future subdivision(s) the City might approve on APN 389 -06 -017 and APN 389 -34 -003. Fees paid. (37) Prior to approval of a subsequent phase final map, the applicant shall contribute $32,500 towards the cost of identified median landscape improvements on Saratoga Ave. between McFarland Ave. and Cox Ave. Any amount of the contribution remaining after the improvements have been installed shall be refunded to the owner (applicant) or successors in interest. The City shall enter into an agreement with the owner (applicant) guaranteeing a proportional reimbursement of the cost of the improvements within 10 years from the date of approval of the subsequent phase final map from any future subdivision(s) the City might approve on APN- 389 -06 -017. Alternatively, the owner (applicant) may opt to contribute $30,000 towards said improvements prior to approval of the initial phase final map subject to the same refund and reimbursement provisions as described above. Plans approved. (38) The landscaping and recreational improvement plans for Lot 95 shall be reviewed and approved by the Parks and Recreation Commission prior to approval of the subsequent phase final map. Acknowledged. (39) Construction acceptance of public improvements within any one phase of the development shall not be granted until final occupancy certificates are issued for 803 of the home within a particular phase. CENML• FIRE Acknowledged. DISTRTCT (40) Automatic sprinklers shall be installed in all new garages. Acknowledged. (41) Applicant /developer shall install eight (8) fire hydrants that meet the Fire District's specifications. Hydrants shall be installed and accepted pursuant to the requirements of the Central Fire District. Acknowledged. (42) Emergency access road connection to Afton Ave, shall be constructed as shown per Exhibit "A ", with a gate, bollards or other type of acceptable barrier, for vehicular traffic in the event of an emergency. Details shall be shown on the building plans and approved by the Central Fire District. CITY ATTO NM Acknowledged. (43) The owner (applicant) shall, upon the City's request, defend,' indemnify and hold the City and its officers, officials, boards, commissions, employees and volunteers harmless from and against any claim, action or proceeding to attack, set aside, void or annul this approval, or any of the proceedings, acts or determinations taken, done or made prior to such approval, which is brought within the time specified in Sec. 14-85-060 City shall romt notice to the applicant of any such the claim, action or proceeding, and shall cooperate fully in the defense thereof. Nothing herein shall prevent the City from participating in the defense, but in such event, the City shall pay its own attorney's fees and costs. The owner (applicant shall furnish a written indemnity agreement and proof of insurance coverage, in accordance with Sec. 14- 05.055 of the Municipal Code, prior to Final Map approval. Acknowledged. (44) Noncompliance with any of the conditions of this permit shall constitute a violation of the permit, Because it is impossible to estimate damages the City could incur due to the violation, liquidated damages of $250 shall be payable to this City per each day of the violation. 2. Applicant shall sign the agreement to these conditions within 30 days of the passage of this Resolution or said Resolution shall be void. 3. Construction must be commenced pursuant to the Development Agreement -or this approval shall be void. 4. All applicable requirements of the State, county, tcity and other Governmental entities must be met. 10 Passed and adopted at a regular meeting of the City Counci: of the City or Saratoga held on the 2nd day of NnvPmhar 1994, by the following vote: r AYES: Councilmembers Jacobs, Moran, Tucker., Wolfe and Mayor Burger Roza: None ABB=Tt None ABSTAIN: None n n ATTEST: Deputy C ty Clark ZTS \rem \g=eeabr.sei 11 r g; %3 . SARATOGA CITY COUNCIL EXECUTIVE SUMMARY NO. AGENDA ITEM MEETING DATE: 4/5/95 CITY MGR. ORIGINATING DEPT. City Manager's Office SUBJECT: Transit Shelter Advertising Program Recommended Motion(s): 1. Determine whether to participate in having shelters with advertising' on them placed in Saratoga (maximum number of three in Saratoga, all of, which would be at West Valley College), Report Summary ` The San`ta' , Clara 'County Transit District has drafted an implementation •agreement between themselves, the Patrick Media Group ;Inc. and all participating jurisdictions on the Transit Shelter Advertising Program originally proposed in July of 1993. In September of 1993; the Saratoga City Council passed a motion to receive and file the recommendation from staff supporting the proposal The Transit Shelter Advertising Program being proposed by the Transit District consists of having the Patrick Media Group, Inc. replace the existing transit shelters with new lighted shelters and provide maintenance in exchange for advertising rights of some of the shelters. Currently, the Transit District is financially unable to install additional shelters although there has been demand for them. Maintenance alone of existing shelters which includes, weekly cleaning, graffiti abatement, trash collection and glass repair costs the district some $500,000 annually. In order to meet the financial demands required to maintain existing shelters and install new ones within Santa Clara County, the Transit District entered into a contract with the Patrick Media Group, Inc. During the first three years of the fifteen year contract, the Patrick group would replace the existing 425 shelters within the county and add an additional 139 shelters at new sites. In addition, Patrick Media would assume responsibility for all existing shelters as well as the new ones that would be installed. In exchange for this, advertising panels would be placed in 75% of the shelters with the remaining 25% of the shelters having no commercial advertising. Although Patrick Media group would post advertising panels in the mentioned shelters, the Transit District retains the right to deny the use of advertising space for any material it finds objectionable. Therefore, advertising that is obscene, pornographic, false, misleading, defamatory, advocating unlawful acts or promoting the sale of alcohol or tobacco will be prohibited. In addition to savings from the costs of current shelter maintenance, the Transit District would receive an annual fee from Patrick Media Inc. along with a percentage of the advertising revenue. The District is proposing that half of its advertising revenue be shared with the cities, proportional to their share of the advertising shelters. All of the proposed shelter sites for the City of Saratoga are located at West Valley College. The Transit District would like to begin implementation of this program by July 1, 1995 if they are . able to receive the necessary approval from the major cities by that time. Fiscal Impacts• None Advertising, Noticing and Public Contact: None Consequences of Not Acting on the Recommended Motions: The City will not participate in the Transit Shelter Program and would not benefit from the improvements made to existing shelters and future shelters if the program is not implemented. Follow Up Actions: Staff will follow through with the Transit District's implementation agreement if it is approved by Council Attachments: -Copy of the agreement between Santa Clara County Transit District and the Patrick Media Group, Inc. -Copy of the current draft of the implementation agreement for the Transit Shelter Advertising Program DRAFT Dated 3/03/951110/95 IMPLEMENTATION AGREEMENT FOR TRANSIT BUS SHELTER ADVERTISING PROGRAM This Implementation Agreement ( "Agreement ") for Transit Bus Shelter Advertising Program is made this day of , 1995 (hereinafter referred to as the "Execution Date "), by and among the Santa Clara County Transit District ( "SCCTD "); Patrick Media Group, Inc. ( "Contractor "); and the following California county and cities: the County of Santa Clara and the Cities of San Jose, Sunnyvale, Santa Clara, Palo Alto, Mountain View, Milpitas, Gilroy, Campbell, Cupertino, Morgan Hill, Los Gatos, Los Altos, Saratoga, fit, Los Altos Hills, and Monte Sereno (the foregoing county and cities are hereinafter sometimes referred to collectively as the "Participating Entities" and individually as a "Participating Entity" or the "County" and /or a "City ", as the case may be).[The names of non - participating cities to be stricken prior to execution.] RECITALS A. SCCTD and Contractor entered into that certain Transit Shelter Advertising Program Agreement dated June 9, 1994 (the "Advertising Agreement "). The Advertising Agreement provides for the construction by Contractor of up to 566 new bus shelters at bus stop locations throughout the County of Santa Clara and- a# -tfie , with three - fourths (3/4) of all Rew-bus shelters to contain advertising panels. The Participating Entities are not parties to the Advertising Agreement. As of January 1, 1995, there are approximately 425 existing SCCTD bus shelters located in areas covered by the Advertising Agreement. -147-- GC \859 1 3/03/959410195 DRAFT Dated 3/03/9549.9/&5 B. The contemplated distribution of the proposed 566 bus shelters and the current distribution of the existing 425 bus shelters are shown on Exhibit A, attached hereto and incorporated herein by this reference. C.S- Subject to the terms and conditions contained in this Agreement, the Participating Entities are willing to participate in the Transit 4us-Sshelter Aadvertising Pprogram, as set forth in the Advertising Agreement and as amended by this Agreement. (The Transit mss- .&Shelter aAdvertising pProgram, asset forth in the Advertising Agreement and amended by this Agreement, is hereinafter referred to as the "Program "). NOW, THEREFORE, the parties agree as follow: 1. Term of Agreement. Subject to Sections 3 and 10 hereof, this Agreement shall be for a term of fifteen (15) years and shall commence on that date (hereinafter referred to as the "Effective Date" of this Agreement) when all conditions set forth in Section 3 have been satisfied. Contractor and SCCTD shall notify the Participating Entities in writing of the satisfaction of the conditions set forth in Section 3 and of the Effective Date of this Agreement. - 2. Subsequent Execution. The parties acknowledge that, pursuant to Section 3, this Agreement may become effective even though not all of the county and -247-- GC \859 1 3/03/9589195 DRAFT Dated 3/03/95V W95 the cities covered by the Advertising Agreement have executed this Agreement, and, furthermore, that such county and /or some of such cities may determine to execute this Agreement subsequent to the Effective Date hereof and subsequent to the commencement of the term of this Agreement. The parties hereby agree that such county and /or such cities may execute this Agreement, and thereby become subject to this Agreement, at any time after the Effective Date by means of an amendment hereto so providing as long as such amendment is signed by all those entities who are parties to this Agreement at the time of the amendment. Each party hereby agrees that it will not unreasonably withhold or delay its execution of such amendments and each Participating Entity hereby authorizes its Executive Director, City Manager, or equivalent executive officer, as the case may be, to execute any such amendment from time to time. 3. Conditions to Effectiveness of Agreement. The effectiveness of this Agreement shall be contingent upon the satisfaction of all. the following conditions: a. The execution of this Agreement by PaFt!GipatiRg FiRtiti s WMIUMMW _ e. 05: L-5, i i I wrti ty_ - ' - - IZ -- -347-- GC \859 DRAFT Dated 3/03/951 it 0/95 abeve -by a sufficient number of the county and cities covered by the Advertising Agreement to result in the incorporation into the Program of a minimum of one hundred fifty (150) advertising_exiStuRg bus shelters during Phase One of the Program, as provided in Section 4 below. 4. Quantity and Location of Shelters. a. Phased Implementation. As provided in Exhibit B, attached hereto and incorporated herein by this reference, the Program shall be implemented in three (3) phases, as follows: (1) Phase One. In the first year after the Effective Date, a minimum of one hundred fifty (150) existing shelters shall be replaced with new advertising shelters, subject to the maximum quantities per ci afea set forth in Exhibit (2) Phase Two. In the second year after the Effective Date, with regard to areas of jurisdiction of Participating Entities which have approved the Program by complying with Sections 3.a and 3.b hereof, all remaining existing shelters shall be replaced, and the aggregate maximum number of advertising shelters in each of the Participating Entities shall be as provided in Exhibit B. (3) Phase Three. In the third year after the Effective Date, with regard to areas of jurisdiction of Participating Entities which have approved the Program -44-7- GC \859 1 3/03/95010/90 DRAFT Dated 3/03/954A M5 by complying with Sections 3.a and 3.b hereof, up to one hundred forty (140) additional new shelters shall be constructed, with the maximum amount of types of shelters for each Entity as provided in Exhibit B. b. Location of Shelters. (1) With regard to each Phase, Contractor and SCCTD shall meet and agree in advance in writing with each Participating Entity as to the location of the shelters to be constructed during that Phase in such Participating Entity's area of (2) Attached hereto as Exhibit C, and incorporated herein by this reference, is the list of approved locations for shelters to be constructed in Phase One in each Participating Entity's area of jurisdiction. (3) If Contractor, SCCTD and a fhe- Participating Entity €Rtities cannot agree, as provided in Subsection (1) above, upon the locations for advertising shelters to be constructed in each area in Phase Two, the Program shall terminate as to Phase Two and Phase Three for that Entity. If Contractor. Santa Clara County Transit District and a Participating Entity the-pa#ies agree upon the locations for advertising shelters to be constructed in Phase One and Phase Two but cannot agree upon the location for new shelters and /or advertising shelters to be constructed in each area in Phase Three, then Phase Three shall terminate for that entity,. Without limitiRg the f9ro..G0q +The parties expressly acknowledge and agree that the Program ma shat -net be expanded from Phase One to Phase Two, or from Phase Two to Phase Three for a particular Participating Entity, upon an accelerated schedule. upon -547-- GC \859 1310319584�4AE95 DRAFT Dated 3/03/95440/95 agreement of that Participating, Entity. cnrmev has ORdividually agFeed with Contractor and SCCTD a6 to the IGGatiGR fGF the PregFam C. Post - Installation Changes. (1) Change to Non - Advertising or to Advertising. Notwithstanding Section 4.b, at any time after a new shelter is installed, Contractor, upon written request by any Participating Entity from time to time with sixty (60-) days' prior notice, shall change an advertising shelter to a non - advertising shelter, or a non - advertising shelter to an advertising shelter. Such Entity's request for such change shall not be denied or delayed by Contractor so long as the ratio of advertising shelters to non - advertising shelters in the Participating Entity's area of jurisdiction does not fall below the ratio of 3 to 1, respectively. (2) Removal and Relocation of Shelters. Each of the Participating Entities shall have the right, for any reason, to require Contractor from time to time, at Contractor's sole cost, to remove and relocate up to five percent (5 %) of the shelters annually in the Participating Entity's area of jurisdiction. Such right shall be in addition to any right of SCCTD under the Advertising Agreement to require the relocation of shelters. d. Shelter Illumination. At the option of any Participating Entity in its sole discretion, any new non - advertising shelter in the Participating Entity's area of jurisdiction may be an illuminated shelter. , whetheF aR adveFti6iRg shelter e, a „9, -64-7-- GC \859 1 3/03/9500/95 IMW "M DRAFT Dated 3/03/951 /! 0/95 e. Maximum Advertising Shelters. Under no circumstances shall the quantity of advertising shelters in any city /county afea- exceed the quantities shown on Exhibit D, attached hereto and incorporated herein by this reference unless agreed to by the individual city /county. f. Encroachment Permits. Unless waived in writing by a Participating Entity where a shelter is located, each new shelter constructed pursuant to this Agreement shall require (i) an encroachment permit issued by the applicable department of the Participating Entity where the shelter is located and (ii) insurance satisfactory to the Participating Entity which shall name the Participating Entity as an additional insured. Contractor shall pay all required encroachment permit fees_ Contractor shall provide all necessary materials to process encroachment permits in an organized batched manner. Participating Entities hereby agree to a per permit processing fee of not more than $300.00. PaFt',,ipatiR9 FaRtit„ from +o. a to ±;...o. Participating Entities shall issue such permits within third (30) days of application therefor. 5. Shelter Design. Unless expressly provided otherwise in this Agreement, shelter design shall be as set forth in the Advertising Agreement. Any Participating Entity, at its sole option, may request a non - standard design for any new shelter constructed in its area pursuant to this Agreement, provided that (i) the Participating Entity requests such non - standard design at the time of the approval of the shelter location pursuant to Section 4.b, and (ii) the Participating Entity reimburses Contractor -747-- GC \859 13/03/95949-0� DRAFT Dated 3/03/95111 M5 for any additional expense for the construction, installation and /or maintenance of such non - standard design shelter. 6. Maintenance of Shelters. a. Maintenance Obligation. During the term of this Agreement, Contractor shall maintain all new and existing shelters in the areas of jurisdiction of Participating Entities in a clean, safe, and first -class condition and in accordance with all provisions of this Section 6. b. Minimum Weeks Maintenance. Contractor shall inspect each new and existing shelter at least once each week and shall perform at least the following maintenance: (1) All trash shall be collected; (2) Shelter shall be cleaned, including without limitation removal of all graffiti, stickers, extraneous posters, litter, dust and dirt; (3) Weeds and litter shall be removed from a 15 -foot radius around each shelter; (4) Shelter shall be washed if needed; and (5) Defective lights shall be repaired to working order on illuminated shelters. C. Solid Waste Regulations: -84-7- GC \859 3103/9500/95 DRAFT Dated 3/03/95111W95 The solid waste collection of the Program is excluded from the franchise requirements of each jurisdiction The Local Enforcement Agency for Santa Clara County shall be responsible for oversight of the trash collection included in the Program and for enforcement of State Regulations with regard to the handling of solid waste. ds. Repair of Damaged or Vandalized Shelters. (1) Contractor shall repair any vandalism or other damage to a shelter within forty -eight (48) hours of the earlier of (i) the observation of such vandalism or damage by Contractor during weekly maintenance, or (ii) telephonic or written notice of such vandalism or damage to Santa Clara County Transit District SGRtraster-by the Participating Entity where the shelter is located. (2) Notwithstanding the foregoing, if shelter vandalism or damage is of a hazardous nature, or if light sources need repair or replacement, Contractor Ce#Faster shall repair such deficiencies within twenty -four (24) hours. (3) Contractor expressly agrees that, if Contractor fails to meet its obligations as set forth in Subsections (1) and (2) above, then Santa Clara County Transit District the Participating Entity where the 6heitei6 4ssaieshall have the right to perform such obligations on Contractor's behalf, without notice to Contractor with regard to those obligations in Subsection (2) and after three (3) days' telephonic or written notice to Contractor with regard to those obligations in Subsection (1). -947-- GC \859 13103 -9a DRAFT Dated 3/03/951/19/95 7. Advertising Agreement Rights. a. Approvals and Rights. Notwithstanding anything in the Advertising Agreement, SCCTD and Contractor expressly acknowledge and agree that the following approvals or rights granted to SCCTD in the Advertising Agreement shall,, instead, be approvals and rights granted to each Participating Entity where the shelters are located, and SCCTD shall have no right of participation in such approvals or rights: Section I -B -3 Option to require illumination of shelters, as of Advertising amended by Section 4.d hereof Agreement Section III Right to require that an advertising shelter be changed to a non - advertising shelter, as amended by Section 4.c hereof GC \85.9 1 3/03/9581 11 0195 -104-7- DRAFT Dated 3/03/955 • - - • - .. 8. Advertising SiGg Content. a. Replacement Provisions. With regard to the implementation of the Program, this Section 8 replaces Sections VI - B and C IV A thFough G, ' , of the Advertising Agreement in their entirety b. Prohibited Displays. Because of each Participating Entity's substantial interest in protecting the health and welfare of its citizens, Contractor agrees that the following displays shall not be allowed on any Program bus shelters: (1) Commercial advertising for tobacco products. (2) Commercial advertising for alcohol domed -6p; (3) In advocacy of unlawful violent action. (4) Any advertisement sign containing any of the following: (a) Any statements or words describing explicit sexual acts, sexual organs, or excrement. (b) Any nudity (picture or illustration) showing genitals, pubic hair, perineums, anuses, or anal regions of any -114--7- GC \859 1 3/03/959- 90/95 DRAFT Dated 3/03/950195 person or animal, or any portion of the breast, at or below the areola thereof, of any female person. (c) "Explicit sexual acts ", as used in this Subsection (5), means depictions of sexual intercourse, oral copulation, anal intercourse, oral -anal copulation, bestiality, sadism, masochism or excretory functions in conjunction with sexual activity, masturbation or lewd exhibition of the genitals, whether any of the above conduct is depicted or described as being performed among or between members of the same or opposite sex or between humans and animals, or other acts involving any physical contact with a person's or animal's genitals, pubic region, pubic hair, perineum, anus, or anal region. (5) Any advertisement specifically prohibited by order of any court of competent jurisdiction. C. No Other Content Restrictions. Except for the express prohibitions set forth in Subsection b above, the Participating Entities shall not impose any other restrictions based on content and nothing herein shall otherwise interfere with the rights of the Contractor in the selection of advertising material for the shelters. 8. Revenue Pass - Through. a. Pursuant to the Advertising Agreement, Contractor has agreed to pay SCCTD eighteen percent (18 %) of cumulative net revenues (as defined in the -1247-- GC \859 13/03MO 110195 DRAFT Dated 3/03/9519/95 Advertising Agreement) produced by advertising shelters in the Program, subject to a minimum payment of $50 per advertising shelter per month. (Such payments are referred to hereinafter as the "Shared Advertising Revenue ".) The Advertising Agreement provides that such payments of Shared Advertising Revenue shall be paid to SCCTD, at various times, by means of a withdrawal from an advance deposit, or by a quarterly payment, or by an end -of- calendar -year payment. b. SCCTD shall pay each Participating Entity fifty percent (59 %) of all Shared Advertising Revenue received by SCCTD for advertising shelters located in each Entity's respective jurisdiction. SCCTD shall make quarterly suGh payments to each Participating Entity such revenue Shared Advertising Revenue shall not include the fee paid by Contractor to Santa Clara County Transit District for administration costs C. Contractor and SCCTD shall maintain any and all ledgers, books of account, invoices, vouchers, and other records or documents evidencing or relating to revenues produced by the advertising shelters in the Program for a minimum period of three (3) years, or for any longer period required by law, from the date of any payment of Shared Advertising Revenue to Participating Entities pursuant to this Agreement. Any documents or records required to be maintained pursuant to this Subsection shall be made available for inspection or audit, at any time during regular business hours, upon written request by any officer or authorized representative of a Participating Entity. Copies of such documents shall be provided for such inspection or audit at a location in Santa Clara County4hat 46 mutually agFeed upop. -134-7- GC \859 /03 3/95941 DRAFT Dated 3/03/951 A 0/95 10. Termination. a. Termination of Advertising Agreement. This Agreement shall terminate automatically if the Advertising Agreement is terminated. Without limiting the foregoing, the parties acknowledge that the Advertising Agreement provides that it may be terminated by Contractor at any time if the number of advertising shelters for any reason drops below one hundred fifty (150) shelters. b. Termination By Participating Entities. In addition to the termination rights provided to SCCTD and Contractor in the Advertising Agreement, each Participating Entity shall have the right to terminate this Agreement with regard to its area and to terminate the Program in its area if: lu ­— .. ... . L--. . . . ..... !Iffie. - (12) SCCTD or Contractor is in default of any of its obligations hereunder or under the Advertising Agreement with regard to the bus shelters in the area of jurisdiction of the Participating Entity and such default is not cured within thirty (30) days after written notice from the-Participating Entity specifying such default_; of -1447-- GC \859 1 3/03/9590195 DRAFT Dated 3/03/95111 W95 C. Rights and Remedies. Upon termination of this Agreement OF UPee the Participating Entities shall have all rights and remedies available to -them under law; without limiting the foregoing, upon termination of this Agreement , the Participating Entities erne w Mthiir ERtity� a the case may be, shall each have the right, in its sole discretion, which shall not constitute its sole remedy hereunder, to require that all advertising displays be removed from the bus shelters in its area of jurisdiction, at no costxo such Participating Entity. 11. Indemnification. Contractor shall indemnify, defend, and hold harmless each Participating Entity and its officers, agents and employees from any claim, liability, loss, injury or damage arising out of or in connection with the implementation of the Program; without limiting the foregoing, Contractor expressly acknowledges that such indemnification includes indemnification for any claim, liability, loss, injury or damage arising out of or in connection with any legal challenge to the implementation of the Program; provided, however, that the indemnification set forth in this Section 11 shall not include indemnification of any Participating Entity for any claim, liability, loss, injury or damage caused solely by the acts or omissions of such Entity's officers, agents or employees. It is the intent of the parties to this Agreement to provide the broadest possible indemnification coverage for the Participating Entities. The obligations set forth in this Section 11 shall survive any termination of this Agreement. If a claim for indemnification (a "Claim ") is to be made by a Participating Entity hereunder aaainst Contractor, such Participating Entity shall give written notice (a "Claim Notice") to Contractor as soon as practicable after the Participating Entity -1547-- GC \859 3/03 /95Q! i4 AE95 DRAFT Dated 3/03/951 il 0195 becomes aware of any fact condition or event which in the reasonable judgment of the Participating Entity, is likely to give rise to a Claim. If any lawsuit or any enforcement action is filed against the Participating_ Entity. a Claim Notice with respect thereto shall be given to Contractor as promptly as practicable (in any event within ten (10) calendar days after the service of the citation or summons). After receipt of a Claim Notice. if Contractor acknowledges in writing its obligation under the terms of its indemnity hereunder in connection with such losses or actions, then Contractor shall be entitled, if it so elects (i) to take control of the defense and investigation of such lawsuit or action: (ii) to employ and engage attorneys of its own choice to handle and defend the same at Contractor's cost risk and expense: and (iii) to compromise or settle such claim in consultation with the Participating Entity. A Participating Entity shall cooperate in all reasonable respects with the Contractor and its attorneys in the investigation. trial and defense of any Claim or lawsuit or action and appeal arising therefrom: provided. however, that if the Contractor has assumed the defense of any claim. a Participating Entity max, at its own cost, participate in the investigation trial and defense of any lawsuit or action and any appeal arising therefrom The Parties shall cooperate with each other in any notifications to insurers. 12 Waiver of Statutory Damages. Contractor. on behalf of itself, its successors and assigns hereby waives and relinquishes any and all statutory rights to compensation related to the removal or relocation of any of the shelters in the Program. including, but not limited to those established in Business and Professions Code sections 5412 et seq. Such waiver shall not affect or diminish any rights to compensation expressly set forth in this Agreement or in the Advertising Agreement. 132. Integrations Amendment or Implementation of Advertising Agreement. -164-7- GC \859 3/031950 / 0/95 DRAFT Dated 3/03/951 /l9/9a a. To the extent of its express provisions, this Agreement amends the Advertising Agreement as such Advertising Agreement and the Program applies to the , Participating Entities and supersedes sUpersedes all prior negotiations between the parties with regard to the implementation of the Advertising Agreement. b. Contractor and SCCTD expressly agree that (i) they shall not amend the Advertising Agreement to materially alter any provision of the Program, without the prior written approval of the Participating Entities, which approval may be given or withheld by any of such entities in its sole discretion, and (ii) they shall not implement the Advertising Agreement in any area unless and until the governmental body in such area (whether a county or a city) has become a party to this Agreement, as provided in Section 2 hereof. 143. Nondiscrimination. Contractor and SCCTD shall not discriminate, in any way, against any person on the basis of age, sex, race, color, creed or national origin in connection with or related to the performance of this Agreement or the performance of the Advertising Agreement. 154. Conflict of Interest: Prohibition of Gifts. a. Contractor shall at all times avoid conflict of interest or appearance of conflict of interest in the performance of this Agreement. Contractor shall disclose any conflict of interest, or potential conflict of interest, which exists or arises at any time during the term of this Agreement. Any Participating Entity shall have the right to treat any violation of this Subsection as a material breach of the Agreement, and shall have -174-7-- GC \859 13/03/950 V I M5 DRAFT Dated 3/03/951 it 0/95 the right to terminate the Agreement and pursue any and all legal or equitable remedies for said breach of this Agreement. b. (1) Contractor shall not at any time offer any officer or employee of a Participating Entity any gift that is prohibited by the laws of such Participating Entity. (2) The offer or giving of any such prohibited gift shall Lonstitute a material breach of this Agreement. In addition to any other remedies the Participating Entity whose laws have been violated may have in law or equity, such Entity may terminate this Agreement for such breach as provided in Subsection a. above. 165. Notices. All notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be personally served or mailed, postage prepaid and return receipt requested, addressed to the respective parties as follows: to Contractor: Patrick Media Group, Inc. Attn: to SCCTD: Santa Clara County Transit District Attn: -184-7- GC\859 31031950111Q195 to- Participating Entities: DRAFT Dated 3/03/951 il 0195 As provided on Exhibit E attached hereto and incorporated herein .by this reference. or to such other address as any party may designate by notice in accordance with this Section 165. Notices shall be deemed effective on the date of delivery. 176. Choice of Law; Venue. a. The parties agree that the law governing this Agreement shall be that of the State of California. b. In the event that suit shall be brought by any party hereunder, the parties agree that trial of such action shall be exclusively vested in a state court in the County of Santa Clara or, where appropriate, in the United States District Court for the Northern District of California, San Jose, California. 187. Execution by Counterpart. This Agreement may be executed in any number of counterparts, each of which shall for all purposes be deemed to be an original and all of which shall together constitute one and the same instrument. IN WITNESS WHEREOF, the parties have signed this Agreement as of the date first set forth above. I GC \859 31031958440195 -194-7- F:_ 1 Dated 3/03/95/95 "Contractor" PATRICK MEDIA GROUP, INC. By: Name: Title: "SCCTD" SANTA CLARA COUNTY Approved as to form: TRANSIT DISTRICT Legal CounselDe 4- I GC \859 3/03/950U10195 LZA --Name: Title: -204-7- DRAFT #3 EXHIBIT A EXISTING AND PROPOSED BUS SHELTERS Existing Bus City or County Shelters Proposed Bus Unincorporated Area as of 111/95 Shelters San Jose 232 308 Sunnyvale 33 44 Santa Clara 27 36 Palo Alto 25 33 Mountain View 19 25 Milpitas 18 24 County Unincorporated Area 14 19 Gilroy 11 15 Campbell 11 15 Cupertino 11 15 Morgan Hill 8 11 Los Gatos 7 9 Los Altos 5 7 Saratoga 3 4 Fremont/BART 1 1 Los Altos Hills 0 0 Monte Sereno 0 0 Page 1 of 1 GC \859 01/10/95 EXHIBIT A TOTAL 425 566 Page 1 of 1 GC \859 DRAFT #3 01/10/95 EXHIBIT A DRAFT #3 EXHIBIT B PHASED IMPLEMENTATION PLAN Phase Two Phase One Full Replacement of Phase Three Approvals Existing Shelters Expansion of Shelters Page 1 of 1 GC \859 01/10/95 EXHIBIT B Total Maximum New Total City or County Existing Replacement Minimum New Total Non- Non - Shelters Advertising Non- Maximum Adver- Adver- Adver- Adver- Unincorporated as of Shelters in Advertising Advertising tising tising tising tising Total Area 1/1/95 Each Area Shelters Shelters Shelters Shelters Shelters Shelters Shelters San Jose 232 81 58 174 57 231 19 77 308 Sunnyvale 33 15 8 25 8 33 3 11 44 Santa Clara 27 12 7 20 7 27 2 9 36 Palo Alto 25 12 6 19 6 25 2 8 33 Mountain View 19 8 5 14 5 19 1 6 25 Milpitas 18 8 4 14 4 18 2 6 24 County 14 7 3 11 3 14 2 5 19 Gilroy 11 5 3 8 3 11 1 4 15 Page 1 of 1 GC \859 01/10/95 EXHIBIT B DRAFT #3 Campbell 11 5 3 8 3 11 1 4 15 Cupertino 11 5 3 8 3 11 1 4 15 Morgan Hill 8 4 2 6 2 8 1 3 11 Los Gatos 7 3 2 5 2 7 0 2 9 Los Altos 5 2 1 4 1 5 1 2 7 Saratoga 3 1 1 2 1 3 0 1 4 Fremont/BART 1 0 0 1 0 1 0 0 1 Los Altos Hills 0 0 0 0 0 0 0 0 0 Monte Sereno 0 0 0 0 0 0 0 0 0 TOTAL 425 168 106 319 105 424 36 142 566 Page 1 of 1 GC \859 01/10/95 EXHIBIT B DRAFT #3 EXHIBIT D MAXIMUM ADVERTISING SHELTERS City or County I Phase I I Phase II I Phase III San Jose 81 174 231 Sunnyvale 15 25 33 Santa Clara 12 20 27 Palo Alto 12 19 25 =. Mountain View. 8 14 19 Milpitas 8 14 18 County Unincorporated Area 7 11 14 Gilroy 5 8 11 Campbell 5 8 11 Cupertino 5 8 11 Morgan Hill 4 6 8 Los Gatos 3 5 7 Los Altos 2 4 5 Saratoga 1 2 3 Fremont/BART 0 1 1 Los Altos Hills 0 0 0 Monte Sereno 0 0 0 TOTAL 168 319 424 Page 1 of 1 01/10/95 EXHIBIT D Page 1 of 1 GC \859 01/10/95 DRAFT #3 EXHIBIT D DRAFT #3 EXHIBIT E NOTICE ADDRESSES FOR COUNTY AND CITIES 1. To County: County of Santa Clara Attn: 2. To San Jose: City of San Jose 801 North First Street City Hall San Jose, CA 95110 Attn: with a copy of any notice of a legal nature, including, but not limited to, any claims against the City of San Jose, its officers or employees, to: The City of San Jose Joan R. Gallo, City Attorney 151 West Mission Street San Jose, CA 95110 3. To Sunnyvale: City of Sunnyvale Page 15 of 3 GC \859 01/10/95 EXHIBIT E TRANSIT SHELTER ADVERTISING PROGRAM AGREEMENT BETWEEN SANTA CLARA COUNTY TRANSIT DISTRICT s",Lw PATRICK MEDIA GROUP, INC. -1- 4 TABLE OF CONTENTS Recitals........................ ......:........................ 4 I. Grant of Advertising Transit Shelter Rights & Privileges ................. ..............:................ 5 A Rights Granted ......................................... 5 B. Rights Retained ............. . ......................... 5 C. Ownership ............ ............................... 6 D. Authorized Advertising Transit Shelters ...................... 6 II. Payments by Contractor to SCCTD 9 AGeneral ............... ............................... 9 B. Payments to SCCTD ................ ..................... 9 - III. Changes in Authorized Advertising ......................... 11 IV. Space Allocation and Utilization ................................ 11 A General __ .. _ ._ ._ .............._ ....... 11: B. Unsold Space .................. ........... ..... ,12 C. Promotion of Advertising Space ... ............... ...... 12 D. Non-Com r- ercial Advertising Space ... .................... 12 E. Public Service Announcement .............................. 12 F. Design Considerations and Use of Materials ................... 13 V. Installation and Maintenance of Shelters ........ _... _ ............... 13 A Installation of Shelters .... ...................._._........ 13 B. Maintenance, Repairs, Replacement ......................... 13 VI. Approval and Propriety of Advertising Material; Removal..................... .............................16 VII. General Statement of Service to be Furnished by Contractor ................. .............................17 VIII. Shelter Installation, Design and Construction .... 18 A Permit Approval ..... ............................... 18 B. Installation Schedule......... ...................... 18 C. Shelter Installation .. ..................... 19 D. Shelter Design ............................. 21 E. Shelter Construction and Materials Specifications ............ .............................25 F. Shelter Relocation ...... ............................... 26 -2- r IX. Term and Termination ............................ ......... 27 A Term and Extension of Term .............................. 27 B. Options for Disposition of Shelters Upon Termination ............. .............................28 C. Default of Contractor ..... ............................... 28 D. Default of SCCTD ....... ........................... ..... 29 E. Termination Prior to Term . ............................... 29 X. Miscellaneous Contract .Provisions ............................. 31 A Santa Clara County Office . ............................... 31 B. Letter of Credit Security Deposit and - - Performance Bond ........ .............................31 C. Subcontractors .. ............................... ...33 D. Indemnity and Insurance .. ............................... 33 E. Social Security, Unemployment Compensation ............. ...... 33 F. Authorized Representatives and Notices ...................... 33 G. Bankruptcy or Reorganization Proceedings ................... 34 -H. No Waiver of Subsequent Breaches or Defaults ................ 34 - -- .I. Assignment. ... .............. .....................- _........ 35 - - . .. J., KTaxes Applicable Law ... ....... ; ............................. ................. .............................35 35 L. Legal. Relationship ...... ............................... 35 M. Section Headings ........ .............................35 N. Entire Agreement ....... ............................... 35 Attachments A INDEMNIFICATION AND INSURANCE ........................... 38 Indemnity.................... .............................38 Insurance.............. ............................... ..38 A Evidence of Coverage ... ............................... 38 B. Notice of Cancellation or Reduction of Coverage ................... 39 C. Quality Insurers (Liability and Surety) ........................ 39 D. Insurance Required ...:..... ......................... 39 B. Performance Bond and Payment Bond for Public Works ........... ............................... 46 -3- ADVERTISING PROGRAM TRANSIT SHELTER AGREEMENT This AGREEMENT is made and entered into by and between the Santa Clara County Transit District, hereinafter referred to as " SCCTD," and Patrick Media Group, Inc., hereinafter referred to as "Contractor." RECITALS 1. SCCTD owns and maintains approximately 439 bus shelters throughout the County of Santa Cara. 2 There is a great need for additional transit shelters along SCCTD's bus routes and the existing shelters lack internal illumination at night. There are no -funds available to expand and upgrade these shelters in the foreseeable future. 3. It is burdensome for SCCTD to dean and maintain the existing transit shelters, and these efforts drain financial and administrative resources from higher priority y SCCTD projects. 4: Fora number4- -years SCCTD -has received -substantial - .- revenues from-the-sale of advertising space on the outside and inside of its buses. A number of other ransit agencies throughout the country also sell advertising space on their transit shelters and on the backs of their bus stop benches. 5. After carefully studying the options available and evaluating the various proposals which. it has received, SCCTD has decided to enter into an Transit.Shelter = .. Advertising Program which will allow the number of transit shelters to be significantly expanded and improved. 6. Under this Program and in accordance with the terms and conditions of this Agreement, the Contractor will provide, install and maintain at its expense a large number of new illuminated transit shelters through the county in exchange for the right to sell and use specified portions of the shelters' exterior panels for advertising space. In addition, Contractor will pay certain sums to SCCTD to cover SCCTD's administrative and public information costs associated with this Program. 0 NOW THEREFORE, the parties have agreed as follows: I.. GRANT OF ADVERTISING TRANSIT SHELTER RIGHTS AND PRIVILEGES- A. Rights Granted Contractor is hereby granted the exclusive right to erect and maintain transit shelters and to place advertising on them during the term of this Agreement in accordance with the provisions contained herein. It is understood and agreed that Contractor or its employees or approved subcontractors will sell advertising: space on the shelters to individual advertisers. , -, B. Rights Retained 1. Advertising SCCTD retains and reserves all advertising rights which are not specifically granted -by this Agreement. --The rights retained and reserved by SCCTD.indude, but are. not limited to, the right.to.use, .display_and/or license:or otherwise provide.for the- .use. of. its own:.-:.:_ name, trade name, trade mark, and/or -other identifying device or symbol used, owned or registered by SCCTD and to display informational notices and materials for its patrons, including instructions, schedules and route maps, so long as such retained rights do not interfere with the space for advertising employed by Contractor on each advertising shelter as provided in this Agreement. 2. Existing Shelters Contractor shall, at Contractor's own expense, replace SCCTD's . existing shelters. Replacement shelters shall be constructed as advertising and non - advertising shelters, as determined by SCCTD in accordance with the technical specifications of this Agreement, and shall be credited toward the Contractor's construction requirements. 3. Non- Advertising Shelters SCCTD further retains the right to require Contractor to erect and maintain transit shelters which will not carry any commercial advertising,. but which will carry transit information such as referred to in Section IV D. At SCCTD's option, such shelters shall be illuminated. Such shelters shall be comparable in construction and maintained at a level equal to the other transit shelters installed by -5- Contractor. The location of non - advertising shelters shall be determined at the sole discretion of SCCTD, unless Contractor has already designated the site as an advertising shelter, but the number of non - advertising shelters constructed at Contractor's expense shall not exceed the ratio of advertising to non - advertising shelters set forth in subsection D.2. below. SCCTD may require Contractor to install additional non - advertising shelters exceeding the above ratio; SCCTD shall -pay Contractor for each such shelter the Contractor's actual costs of such construction on a time and materials basis. That is, SCCTD shall pay for the actual costs of labor and materials incurred by Contractor, and in addition shall pay a reasonable markup on those amounts to compensate Contractor for overhead costs reasonably allocable to the construction. Further, SCCTD shall pay Contractor for the actual costs of the maintenance of such shelters on the same time and materials basis. C. Ownership The transit_ shelters constructed and installed by. Contractor at Contractor's._.. expense: -shall be the property of Contractor until this,Agreement is terminated. Upon termination of this Agreement, if SCCTD elects to take title to any or all of such shelters, SCCTD shall pay for those shelters it elects to keep pursuant to Section IX. B. or E. or in case of termination due to Contractor's default, no payment shall be made. Title to the shelters purchased by SCCTD pursuant to Subsection I. B. 3., above, shall vest in SCCTD. D. Authorized Advertising Transit Shelters General In accordance with the exclusive right to erect and maintain advertising transit shelters within the SCCTD's territorial jurisdiction and for exclusive advertising rights granted in Subsection I.A., above, SCCTD authorizes shelters and advertising set forth as follows: 2. Number of Advertising and Non - Advertising Shelters The minimum total number of shelters to be build and installed at Contractor's expense under this Agreement is 564 advertising and non - advertising shelters. The ratio of advertising to non - advertising shelters shall be 3 to 1. Contractor shall first build and install the replacement shelters. Contractor shall thereafter build and install the 0 balance of the 564 total shelters. Contractor and SCCTD will mutually agree before constructing additional advertising and non - advertising shelters after 564 shelters have been constructed. As additional shelters are constructed, Contractor shall insure that the 3 to 1 ratio of advertising to non - advertising shelters is maintained. While existing shelters are being replaced, any remaining existing shelters shall be considered non - advertising shelters for the purpose of calculating the required ratio. If SCCTD requests the construction of non - advertising shelters in excess of the required ratio, then SCCTD shall pay for the cost of the construction of such shelters. SCCTD shall also pay the cost of any custom shelters requiring a nonstandard design. The costs of non - advertising shelters in excess of the required ratio, and of custom shelters shall be determined on the time and materials basis set forth at I B3 above. 3. Implementation schedule Contractor shall build and install twot- dred-(200)ofthe,u. = replacements of existing shelters within.the.first year of the term of this _contract; all remaining - replacements. of-existing shelters in the second year of the term of this contract, and shall build and install the balance of the 564 shelters within the third year of the term of this contract. However, Contractor shall receive time extensions equal in length to delays which occur due to occurrences outside the control of the contractor, and which are not occasioned by the failure of the Contractor to pursue completion of the building and installation of the requisite number of shelters with due diligence. Such occurrences outside the control of the Contractor shall specifically include unforeseeable delays in obtaining any necessary permits or authorizations required as a condition to commencing or completing the building and installation of the shelters. 4. Locations Contractor shall propose the locations of all commercial advertising shelters to the SCCTD, who shall not unreasonably withhold its approval of those locations. It shall be the Contractor's responsibility to determine the specific siting of shelters and to present location drawings and other required information to the appropriate officials of each City /County in which the shelters are located as specified in Section VIII. A SCCTD shall cooperate with the Contractor in detemvning shelter siting. If a site is found by the Contractor to be unsuitable or economically unfeasible to construct or maintain a -7- shelter, the Contractor retains the right to remove the shelter subject to SCCTD's approval, which shall not be unreasonably withheld. SCCTD shall have the right to require the Contractor, at its sole cost, to remove or relocate no more than five (5)% of the shelters annually for the convenience of businesses, pedestrians and/or transit patrons or because of a change in bus stop location. SCCTD may permit a shelter to be removed or relocated if the maintenance and repair record of the Contractor indicates that the shelter cannot be maintained at that location due to excess vandalism. SCCTD shall have final authority to approve or deny the installation of any shelter notwithstanding the fact that any proposed installation otherwise complies with the terms of this Agreement. SCCTD'S consent under this subparagraph shall not be unreasonably withheld. SCCTD shall have the authority to cause a transit shelter to be `�- -removed or relocated from any location at no cost to SCCTD-, -upon making written demand for such removal to. Contractor, _ :.notwithstanding..the fact that any such shelter otherwise complies -with _= this Agreement, permit requirements, or any otherwise applicable provision of law, subject to the above provisions. 5. Displays SCCTD authorizes Contractor to use the "downstream" end wall (furthest from approaching transit vehicles) for a two -sided or flared and secured panel to display advertising material. In no case shall advertising be displayed on the end wall closest to the approaching transit vehicle. Such material shall be back -lit. No advertising poster shall exceed twenty four (24) square feet in area, or be greater than six (6) feet in height and four (4) feet in width. Advertising copy shall be of the highest quality. The shelter designs are intended to provide structures which are aesthetically compatible within the communities of Santa Clara County. Each transit shelter will be configured to appropriately conform to the requirements of each specific location. For this reason, the size and proportional dimensions of specific transit shelters may differ. All transit shelters will be manufactured with aluminum. Structures will be painted using a silicon polyester baked finish to withstand high pressure cleaning, graffiti and the elements. It is understood that each City will require the submission of an application for a building permit, encroachment permit, or similar approval at each shelter location.. Contractor agrees to pay for reasonable permit fees. II. PAYMENTS BY CONTRACTOR TO SCCTD A. General During the term of this Agreement, Contractor shall pay to SCCTD, without 4 = - any deduction: or offset whatsoever, in lawful -im- ney -of the United States of America,, at the offices of the Santa. Clara County Transit District, 3331 North First St., San Jose, CA 95134 -1906 or at such other place as -SCCTD may from time to time designate by written notice to Contractor, the sums as set forth below. B. Payments to SCCTD To cover administrative .costs,, the Contractor shall pay SCCTD. annually an amount-.equal to -the-flat.fee payment of.$50000for. -each .year -of. -the term of this Agreement adjusted annually (but never decreased) by the percentage annual (determined as of the anniversary date of this Agreement) change in the Consumer Price Index for the San Francisco- Oakland-San Jose Metropolitan Area for All Urban Consumers (1982 -84 base year equals 100) or an essentially equivalent successor index. The $50,000 bid security will be retained by SCCTD as the Contractor's payment for Year One and will be paid by Contractor to SCCTD upon execution of this Agreement. Payments for Years Two through Fifteen shall be made to SCCTD on the date of each anniversary of this Agreement. Contractor further agrees to pay the sum of $750,000.00 to SCCTD upon the satisfaction of each of the following conditions: a. Each of the cities of Santa Clara, Mountain View, Sunnyvale, Palo Alto, Milpitas, and San Jose (hereafter the "Key Cities ") must approve the construction and maintenance of such advertising shelters, without the institution of substantial restrictions beyond those provided for in this Agreement. b. Securing permits and all other appropriate, local govemment approval for the construction of 150 advertising shelters, with proportional distribution among Key Cities. 0 C. Should this Agreement terminate before the end of fifteen years, for whatever reason, then SCCTD shall remit to Contractor any unearned portion of the advanced revenue share of $750,000.00 pro-rated on the date that the Agreement's termination becomes effective. That is, SCCTD shall remit to the Contractor, the difference between the $750,000 paid by the Contractor hereunder and the total of SCCTD's right to 18% of Contractor's cumulative net revenues, or to the minimum payment of $50 per month. per shelter as provided herein,to date of termination as defined hereunder. SCCTD acknowledges that each of these conditions contained in these subparagraphs a., b., and c. is for Contractor's benefit, and thus Contractor exclusively has the right to waive each or any of these conditions at its sole discretion. SCCTD acknowledges that this advance payment of $750,000.00 will be credited against Contractor's obligation to share with - SCCTD 18% of its cumulative net revenues during the term of this Agreement. Cumulative net revenues. -are :.. defined to equal the gross revenues derived from each advertising shelter, less agency commission which for purpose of this agreement shall be 15 %. Only when Contractor's cumulative net revenues, when multiplied by 18 %, or the minimum payment of $50 per shelter per month, exceed this $750,000.00 sum will Contractor become obligated to share with SCCTD 18% of its subsequent cumulative net revenues. After the advance payment of the $750,000 is exhausted, the monthly $50.00 per advertising shelter per month minimum payments will be paid quarterly. Any cumulative net revenues beyond these monthly payments will be paid within 30 days from the end of the calendar year. 1. Late Payments Payments due hereunder which are not paid when due shall bear interest at the rate of one percent (1 %) per month or fraction thereof from and after the date said payment was due until the date paid. -10- 2. Reports Annual Financial Report On or before the twentieth (20th) day of the first calendar month, the Contractor shall submit to SCCTD Director copies of the Contractor's Annual Report prepared by an independent public accountant. SCCTD shall also be entitled to audit the Contractor's books pertaining to the shelter project on demand. 2. Monthly Maintenance Log As described in Section V. B.2. _ III. CHANGES IN AUTHORIZED ADVERTISING It is mutually acknowledged and understood that advertising and the grant of advertising rights provided for herein, are only incidental to SCCTUs transportation business, which may .undergo changes affecting the advertising . :. rights granted herein. SCCTD accordingly shall -:have -no, liability to. Contractor for any change in its routes or in the number of transit vehicles operated by it or ridership or for any other change in its business activities which-may affect the level or scope of advertising authorized by SCCTD. Contractor acknowledges that the space available for advertising on shelters may vary from time to time for various reasons, including policy decisions by SCCTD relative to the desirability of advertising on some of the transit shelters. SCCTD shall give the Contractor a minimum of ninety (90) days' notification if policy decisions regarding changes in shelter advertising are to be made provided, however, that SCCTD shall not make changes in advertising which change the ratio of advertising to non - advertising shelters from 3 to 1. If policy actions by SCCTD result in the reduction of the number of new shelters to below 150, then the parties will renegotiate the payments due the SCCTD. Contractor agrees that any and all contracts it enters into with advertisers shall contain a cause permitting cancellation without penalty, except for proration of fee, upon sixty (60) days notice. IV. SPACE ALLOCATION AND UTILIZATION A General Notwithstanding the provisions. of.Section I of this Agreement, SCCTD, at no charge to SCCTD except as specifically set forth herein, shall -11- also have the option to use certain advertising space which has not been sold, as set forth more specifically in this section. B. Unsold Space SCCTD shall have the fight to use any unsold advertising spaces on a "Space Available" basis for a minimum of fifteen (15) days at any time ninety (90) days after installation of a shelter is completed. SCCTD shall bear the cost of providing posters printed and ready for posting by Contractor. SCCTD's Deputy Director, Marketing and Service Development, shall notify Contractor at-least thirty. -(30) days .prior to the date on which SCCTD's use will begin. Should a customer of Contractor agree to pay for such space, either within this thirty -day notice period, or at any time after SCCTD commences use of the unsold space, then Contractor will remove SCCTD's copyfrom the space within fifteen days of receipt of such-notice from Contractor. C. Promotion ofAdvertising Space - Contractor -mays with SCCTD approval, use at. Contractor's sole cost and expense available unsold advertising space for its own advertisement and promotion designed to increase the sale of advertising space. D. Non - Commercial Advertising Space Exclusive of all commercial advertising space referred to in this Agreement, SCCTD reserves the right to place on all transit shelters informative material. Such informative material shall be displayed and posted by Contractor at no cost to SCCTD. SCCTD shall not sell such space to advertisers either directly or through any intermediary. Such informative material shall be placed only in a single designated back panel of the shelter. E. Public Service Announcements Contractor shall have the right, with SCCTD approval, to display free of charge upon any spaces not contracted for use by paid advertisers and not being used by SCCTD or Contractor, certain public, educational, charitable and editorial displays, on any Shelters designated as commercial advertising space. -12- F. Design Considerations and Use of Materials It is the intent of both SCCTD and Contractor to provide an advertising program which is effective and aesthetically pleasing and which will be beneficial to both parties. The parties accordingly agree: (1) to maintain throughout the term of this Agreement a continual liaison and exchange of plans and information to assure its successful implementation; and, (2) to use materials and technology presently available or subsequently developed for advertising that will enhance the appearance and image of the shelters. V. INSTALLATION AND MAINTENANCE OF SHELTERS A. Installation of Shelters ZZ .Contractor shall install shelters in the locations designated as described in _ Section I.D.3, above. Contractor shall be responsible for adhering to statewide building and electrical code standards and any applicable California - State Office .of Architecture standards or other local, county,. state.and federal laws, regulations and standards for shelter design, construction and _. installation. SCCTD or City personnel shall be entitled to inspect the work and oversee the enforcement of these standards. Internal electrical components and hook -up procedures shall be arranged and performed by the Contractor in accordance with the statewide electrical code. The Contractor shall bear the full cost of installing, providing, and maintaining electrical services to each shelter. All electrical service lines in the shelter site shall be underground and shall originate from the point of service designated by SCCTD or the local electrical utility company. The City /County shall determine the street lighting conduit or other source that the Contractor can utilize to house any electrical service wiring for the shelters. Contractor shall contact the local utility company and arrange for additional service not provided by the City /County and shall pay the City /County or the local utility company directly for all charges for service connections and electricity. All liability related to electrical connection, installation, or repair for shelter construction, operation, and maintenance shall be the sole responsibility of the Contractor. Contractor, at its own expense, shall obtain local building, encroachment permits or similar approval as required by Section VIII.C.3. B. Maintenance. Repairs, Replacement 1. General Contractor shall maintain, repair. and replace new advertising and non - advertising transit shelters installed under this Agreement as set forth below. Contractor shall commence maintenance of existing -13- shelters on July 1, 1994. SCCTD shall pay the actual costs of Contractor's maintenance on a time and materials basis (i.e., Contractors actual costs of labor and material used in such maintenance plus a reasonable markup for Contractor's overhead reasonably allocable to Contractor's maintenance activities). Contractor shall maintain existing shelters at Contractor's own expense, and shall repair and replace the existing shelters at Contractor's own expense as soon as Contractor and SCCTD have reached agreement with all of the Key Cities to construct advertising shelters within each of their municipalities. Contractor reserves the right to suspend its obligation to maintain both new and existing . shelters at its own expense if 150 permits for the construction of shelters have not been issued within six months of the oornYmmencement of this Agreement. Contractor further reserves its right to suspend its obligation to maintain non - advertising shelters if, after. obtaining 150 _. permits for the construction of new shelters, the number of permits or new shelters drops below 150. 2. Maintenance Schedule Contractor shall conform with the maintenance and - repair standards set forth in this Agreement and be responsible for maintaining shelters in reasonably satisfactory condition throughout the life of the Agreement, including cleaning, refurbishing, reconditioning, and, if necessary, replacing wom shelters. The Contractor shall develop a log for shelter inspections and maintenance work performed and submit the log to SCCTD at the end of every month or as required by SCCTD's Deputy Director, Marketing and Service Development. If the Contractor does not maintain its routine inspection and maintenance schedule or remedy outstanding deficiencies within forty -eight (48) hours of notification, SCCTD shall be entitled to correct the deficiencies and bill the Contractor for the work performed. In addition, the Contractor shall furnish to the Deputy Director, Marketing and Service Development a monthly narrative summary of its maintenance operations, noting problem areas, and corrective actions taken. 3. Inspection and Cleanup The Contractor shall make routine inspection calls on each shelter site once per week. The Contractor shall make more calls if conditions warrant. Contractor shall ensure that each shelter will be equipped with a fifteen gallon receptacle. At each inspection call the Contractor -14- _;_ y__; shall collect trash and dean and wash each shelter site, as needed. Additionally, the Contractor shall inspect the lighting fixtures and replace defective lights and remove all graffiti, stickers, extraneous posters, litter, dust and dirt, and weeds from each shelter site and from a fifteen foot (15') radius surrounding the shelter site. SCCTD shall be responsible for arranging the relocation of street furniture so that maintenance of the shelter is. not impeded nor the transit operator's view of the shelter blocked. 4. Repair and Replacement The Contractor shall repair or replace within forty -eight (48) hours of notification any damage, vandalism or graffiti found on or around the shelter site, exclusive of other street furniture and private property. If the shelter damage, vandalism or graffiti .is of an emergency or hazardous nature, or if light sources need replacing, the contractor shall repair, replace or remove the same within twenty-four (24) hours of notification or as needed. If the shelter is destroyed or ham-full lo the- public, the Contractor shall remove the shelter remains or damage .- -as -soon as- possible within twenty-four (24) hours of notification and_. replace the shelter within fifteen (15) days. In conjunction with such removal, the Contractor shall, at its own expense, restore the .. respective sidewalk and, if affected by the removal, curbs to a safe, finished condition. If Contractor determines that maintenance of the shelter free from vandalism, graffiti, or trash is not reasonably practicable under nominal maintenance, then Contractor shall request the right to remove or relocate each such shelter or trash receptacle. If Contractor is denied permission to relocate the shelter, then SCCTD will be subject to additional costs associated with maintaining shelters at such locations. 5. Contractor's Failure to Perform Services If Contractor fails to provide maintenance, dean -up and/or repairs within time periods specified above, SCCTD may, after providing fifteen days' written notice to Contractor, in SCCTD's sole discretion and without prejudice to any other legal remedy for breach of this Agreement to which SCCTD may be entitled, provide any or all of the omitted services and bill Contractor for all expenses incurred. Contractor shall pay all such billings within thirty (30) days of receipt of SCCTD's invoice and proof of payment of same by SCCTD.. -15- M. APPROVAL AND PROPRIETY OF ADVERTISING MATERIAL; REMOVAL A. SCCTD reserves the right to approve all advertising, exhibit material or announcements and their manner of presentation upon request by. SCCTD. B. No advertising promoting the sale of alcohol or tobacco shall be allowed in the bus shelters. C. No advertisement, exhibit material or announcement shall be accepted by Contractor for display in the bus shelters which is to the knowledge of the Contractor. False, misleading or deceptive; or 2. Clearly defamatory; or 3. Obscene or pornographic according to local community standards; or 4. In advocacy of unlawful violent action; or 5. All or any combination of the foregoing. D. Before displaying any advertising, exhibit material or announcement which Contractor believes may be objectionable to SCCTD, Contractor shall first submit the material to SCCTD for SCCTUs review. SCCTD shall have the right to deny the use of any transit shelter advertising space for any material which it reasonably determines to be objectionable. E. Reasonable proof or clarification of statements contained in any advertisement, exhibit material or announcement may be required by SCCTD as a condition of use or continued use of transit shelter advertising space. F. Advertisements of a political or editorial or election nature, either for a specific candidate(s) or an issue(s), are to contain the statement: "Paid for By {sponsor's name} including (when an election campaign is involved) the State of California committee number in bold type with letters at least three inches (3") high. G. Contractor shall immediately remove from any transit shelter, at Contractor's sole cost and expense, upon written demand of SCCTD or its authorized representative, advertising material, including advertising content, which does not meet with SCCTD's reasonable approval. In the event that such matter is not removed within two (2) working days of receipt of the written demand, -16- SCCTD or it's authorized representative may remove said material or display and Contractor shall pay any costs incurred by such action. SCCTD or its authorized representative shall not in any way be held responsible or liable for any damage to the transit shelter or materials so removed. H. Contractor shall establish a schedule of rates to be applied to the advertising in transit shelters. Such rates shall be forwarded to SCCTD initially and immediately upon any changes during the course of this Agreement. I. Contractor shall have the right to trade uncommitted advertising space for an .equivalent market'value of advertising space or time: on other advertising media or other goods and services providing: 1. Such trade agreements are in written form with copies provided to SCCTD. - 2. Contractor shall use its best efforts to sell advertising space for cash and to minimize unsold or traded space. J. Advertisements_ displayed with dated content shall be removed by Contractor within ten (10) working days of the expiration or obsolescence of the ad content unless otherwise mutually agreed upon. VII. GENERAL STATEMENT OF SERVICE TO BE FURNISHED BY CONTRACTOR Contractor, or its employees and approved subcontractor shall: A Make a continuous full -time, and good faith effort to sell the greatest practical amount of advertising on SCCTD's shelters; B. Continuously maintain in a dean, safe, and first -class condition during the entire term of this Agreement all shelters installed under this Agreement; C. Place, replace and maintain in a dean, safe, and first -class condition during the entire term of this Agreement all shelters and advertising copy, advertisements, suitors, transit information and display materials. D. Provide an experienced sales force with the capability to acquire national advertising accounts; E. Maintain its own offices and shop facilities in the Santa Cara County managed by full -time SCCTD shelter manager. -17- F. Assure the best possible in design and construction of exhibits and advertising material to be installed or used in said displays; G. Erect all shelters and insert all advertising matter, SCCTD transit information and poster art whenever possible at hours of minimum transit passenger activity or at such hours as are approved by SCCTD; and H. Provide the necessary personnel to ensure the correct maintenance of shelters and advertising matter contained therein. Provided that SCCTD shall use its -best efforts to cooperate with and support Contractor in performance of its duties herein. VIII SHELTER INSTALLATION, DESIGN AND CONSTRUCTION A Permit Approval Within sixty (60iclays -after the award of the contract, the Contractor shall submit location /construction..drawings, ,application forms, playas for electrical hookups -and -other required information:for a.r-ninimum of twenty (20) shelter. sites together with any required pert fee for each shelter site to SCCTD before Contractor transmittal to each respective City /County. The twenty (20) shelter sites submitted to the respective City /County will be designated by the Contractor. Such sites may consist either of locations where shelters currently exist, or locations which currently are not improved with a shelter. SCCTD will review the location/construction drawings and inspect the sites for each group. of shelter sites prior to granting approval to install the shelters. SCCTD may conduct an environmental review of each proposed site prior to final selection. The Contractor shall secure SCCTD's written authorization for each shelter prior to installation. Subsequently, the Contractor shall submit on a monthly basis as many drawings as it sees fit, application forms and other required information together with the required permit fees for twenty (20) new shelter sites until 150 shelter sites have been fully authorized and approved within the first six months of this Agreement's oomrnenoement. B. Installation Schedule Contractor shall begin installation of each shelter within thirty (30) days after issuance of SCCTD's written authorization and issuance of all required City /County permits. Installation of advertising and non- advertising shelters shall occur simultaneously according to the ratio set forth in Section I.D. 2, above, as determined by SCCTD. C. Shelter Installation. Placement No shelter shall be constructed on a parkway or sidewalk dedication less than eight (8) feet wide, except,in specific cases that are approved by SCCTD. Shelter placement shall comply with the Americans With Disabilities Act (ADA) guidelines. No shelter shall be placed such that, in the - opinion of SCCTD; it affects the performance _of any _traffic control - device. If SCCTD deterrnines that the shelter can be allowed by altering the traffic control device, Contractor shall, at its-sole expense, be responsible for any necessary alteration if the site is still desired. No part of any shelter shall be placed within forty -five (45) feet of any adjacent point of curb return or driveway unless adequate sight distance can -be- provided to the satisfacti ©n of SCCTD. - - For safety reasons, shelters shall -not be_.installed on any island designated to separate or regulate vehicular- traffic unless otherwise approved by SCCTD. Shelters shall not normally be installed on steep streets of over 10 percent grade. Where the shelter has been found to be desirable on steep streets, the design of the shelter and its placement may be required to be altered in a manner acceptable to SCCTD. Public or private land adjacent to the sidewalk shall not bE utilized for shelter siting without written approval from the SCCTD Deputy Director, Marketing and Service Development. In addition, at SCCTD's option, Contractor shall secure the necessary legal instruments from the affected landowner(s) authorizing such use of the property. All such legal instruments shall name SCCTD as a successor to the Contractor's interests therein upon termination of this Agreement. 2. Clearance a) Minimum clearance between the shelter and any obstruction (i.e., street lights, power pole, trees, etc.) shall be forty eight (48) inches. b) All sidewalk transition which requires out -of - direction walking shall be one -foot lateral movement to four (4) feet longitudinal movement or greater. -19- c) The area between the shelter and the curb line shall be a paved surface. 3. Location/Construction Drawings The Contractor shall submit to SCCTD and to any City /County which requires the issuance of an encroachment permit for installation of the shelter a location/construction drawing s "bowing shelter placement along the designated bus zone for each of the shelter sites submitted by Contractor, shal I prepare electrical drawings and technical specifications in accordance with the pertinent. codes and regulations. The Contractor shall be responsible for furnishing and installation of all electrical work for a complete and operable installation. - The Contractor shall confer with PG&E or applicable city utility departments as to the amount of work they will perform, any material orIabor not performed by PG&E or applicable city utility department shall be supplied and installed by the Contractor for a complete electrical installation. The location/construction drawing shall contain a twenty foot (20') to one -inch (1 ") scale (20 scale) representation of. the proposed shelter site covering the area for the.shelter from the property line to the street centerline at the nearest intersection. Mid -block sites can be shown with broken line ties. The drawings shall also give all necessary street or station dimensions, such as sidewalk width and street width, and denote all surface structures including hydrants, utility poles and catch basins and their accurate positions. The Contractor is responsible for determining which utility lines lie beneath the.shelter site and for showing them on the location/ construction drawing. The City /County must issue an encroachment pern it (if one is required) before the construction work commences on a particular site. All drawings shall utilize the Autocad 12, when appropriate. 4. Site Preparation Work The first component of the construction work to be completed under this Agreement consists of the site preparation. This includes the construction of any foundation, paving and electrical work necessary to the installation of the transit shelters. This component of the work shall be performed by persons/entities licensed by the State of California in accordance with the California Contractors License Board and the California Business and Professional Code for the work they intend to perform. The licensed construction contractor shall be required to comply with provisions of the California Labor Code pertaining to payment of worker's compensation, prevailing wage rate, apprenticeship and hours of labor and with Federal Executive Order No. 10925 pertaining to equal employment opportunity. -20- 5. Construction Sites When each shelter installation is complete, the Contractor shall remove all excess materials and restore the work area to its pre - installation condition. All aspects of this work shall comply with the City /County permit requirement and specifications and all details of the work shall be indicated on the location drawings. D. Shelter Design 1. General Contractor shall be responsible for adhering to statewide building and electrical code standards and to any applicable local, county, state, or federal laws, regulations and standards, including California State Office of Architecture standards for shelter design, construction and installation. .2. . Program Implementation Schedule and Plan Contractor shall submit to SCCTD for their approval, within - thirty (30) days after execution of this agreement, a detailed schedule and plan showing the Contractor's implementation of the Transit Shelter Advertising Program. The schedule and plan shall be updated at least monthly and include monthly reports of the actual work completed each month. A bar chart type schedule is sufficient, with detailed dates and explanations of work activities. Plan and schedule shall include a time frame to complete the entire buildout of the initial 564 shelter program. Plan and schedule is critical for the issuance of the 150 commercial advertising shelter permits within the specified six months. The plan and schedule should show, at a minimum: a. Planned submittals of site plans for SCCTD and City review. This would include a listing of actual sites including replacement of existing shelters and installation of new shelters. b. Realistic and achievable site design review and approval durations for SCCTD and Cities. C. Submittal of shelter design. -21- 3. Shelter Design Submittal Contractor shall submit to SCCTD for their approval, within thirty (30) days after execution of this agreement, the following documents related to the design and construction of shelters. The following information shall be submitted for each shelter installation type: a. regular site, comercial advertising shelter b. narrow site, commmercial advertising shelter C. regular site, non-commercial advertising shelter d. narrow site, non-commercial advertising shelter - Only information showing the differences in the above types is - m necessary beyond the inforation which describes the basic shelter.. Two (2) sets of all information should be submitted. - a. _.-Complete set of specifications and drauaimgs of the. proposed: shelter. b. Cor�lete sets of working drawings. The layout, detail and all pertinent structural. calculations shall be shown on the working drawings. Working drawings shall show dimensions, .sizes, thicknesses, gauges, alloys, tempers, finishes,. joining, _ attachments, and relationships of work to adjoining surfaces. C. Plans and working drawings shall include transit information panel, bench, base mounting, and trash can. d. Plans and working drawings shall include all lighting and electrical details. e. Plans shall be prepared and stamped by the appropriate Registered Engineers (Structural, Electrical) in the State of California. 4. Minimum Shelter Design Spedfications a. Shelters shall be no less than seven feet (7) high minimum interior. b. Shelter shall have a minimum of two wall panels or offer equivalent protection. -22- C. Shelters shall provide protection from wind, sun and rain. A standard roof overhang shall be designed into each shelter. (Note: wind conditions will vary widely from sitejo site. Therefore, roof overhangs shall be designed accordingly.) d. Shelter shall offer see- through visibility from at least three directions and shall be designed to be compatible with park sites and commercial and residential neighborhoods. e. Shelters shall be adaptable for narrow sidewalks under ten feet (10') wide. f. Shelters shall be adaptable for sidewalk grades up to twenty percent (20 %). g. Shelters shall be approximately twelve feet (12') to fourteen feet (14) long and adaptable for expansion. h. Shelters shall.. provide front walk-through and com . plement existing street furnishings. - i. Shelters shall meet all Americans with Disabilities Act.(ADA) requirements with wheelchair space within and access of at least a thirty -inch (30 ') wide opening, and shall not obstruct a wheelchair user boarding or alighting from an accessible vehicle at an accessible transit stop. Shelters shall have individualized or other seating that: can accommodate a minimum of three (3 people), and can be removed if necessary. Benches shall be no less than sixteen inches (15'), nor more than twenty -four inches (24') high. k. Shelters (except those otherwise designated by SCCTD) shall be illuminated from dusk till dawn, to a minimum of five -foot (5) candles, measured at a height of five feet (6) at the center of the shelter. Shelters shall also contain vandal resistant lighting fixtures. I. Shelters shall have a roof drainage to prevent water from dripping over the edges. Water shall be drained throughout a downspout(s) located in the columns with the water exiting at approximately sidewalk level. M. Shelters shall prevent pooling of water on the shelter roof and floor. -23- n. Shelters shall contain a two-sided or flared, backlit advertising panel not more than four feet (4) wide by six feet (6') high secured by screw or key locking metal doors which cannot be pried open. Advertising panels must be located on downstream side of shelter or back panel so that unimpeded visibility of approaching transit vehicles is permitted. o. Shelters small contain a panel for transit information designed to hold a route map, infommation sign, and area for schedule information. p. Shelters shall contain a mounting for identifying stop location. SCCTD logo and route numbers on fascia as required by SCCTD. All transit information graphics shall be developed by SCCTD. -. q. Shelters shall not obstruct any signage at site. Shelters shall not be so illurrinated:as to confusezpassing vehicle operators. S. Transit stop signs shall be incorporated into the shelter in cooperation with SCCTD and shall conform to Americans with Disabilities Act (ADA) requirements. t.: The name of the . nearest cross street shall. be placed _on .the roof fascia: Minimum letter or number size: 3' U. Shelters shall contain a three -inch by three -inch (3 "x 3') shelter plaque identifying the name and telephone number of the service company and the name, address and telephone number of the Contractor. V. Each shelter shall include a trash receptacle. The trash receptacle shall not be so positioned as to block the bypass space between the shelter and the curb face. Minimum 42" space clearance is required unless receptacle is physically attached to shelter. Trash receptacle specifications. a. 15- gallon minimum capacity b. Bolted to site c. Fiberglass, metal, concrete or plastic construction -24- E. Shelter Construction and Materials Specifications .1. Materials shall be chosen for ruggedness and ability to withstand vandalism and weathering (e.g., structural steel with baked enamel finish). 2. Shelter structure shall be compatible with existing street furniture. 3. Transparent vertical panels shall be minimum 3/8" tempered glass except advertising panel which may be 3116' tempered glass. Exposed wall edges shall be polish ground. A polished ground edge is permitted only when it is less than -two inches (2 ") .from a support or protector. Al walls more than two inches (2 ") from a support shall be framed. A high impact strength polycarbon may be substituted at high ,-vandalism locations with the approval of SCCTD. 4. Materials and design shall conform to all local and state codes and be - - ' "-able to withstand 20 P.S.F. wind pressure and 40 P,3`r": loading pressure and have test data and certification from a.California _ :..:;. _zRegistered :Structural:Engineer to show. stwctures..meet_this requirement. 5: Shelter designs shall be developed and materials employed which discourage people from using shelter roofs for parade viewing. 6. Foundation shall be secure but allow for shelter removal.. Al. post foundations shall be made using a one -foot (1') diameter coring design with plans approved by a California Registered Civil or Structural Engineer. Alternative foundation designs may be used as approved by SCCTD. 7. Al concrete finishing shall conform to SCCTD standard specifications, latest editions. 8. Contractor shall have its own quality control supervisors working at every construction site a minimum of one hour per working day. 9. Rough concrete finishing shall be removed or ground down. Concrete shall be smoothed to a rough broom finish or to match areas that are at site currently. 10. All welding of structures (foundations excepted) shall be done at the Contractor's factory or in a shop and be accomplished by the electric shielded arc process. All field welding (foundation work only) shall have continuous inspection. -25- 11. Anodized aluminum may be used for any columns or load bearing members if of sufficient strength to bear loads. All aluminum used shall conform to 6063 -T6 or better. The use of aluminum may include the top, ceiling, roof fascia, facings and window channels. 12. The use of Fiberglass for any structural portion of the shelter including ad panel and roof assembly shall be prohibited. 13. All metal surfaces shall be finished at the factory; on -site touch -up will be permitted. There shall be minimum of one primary coat and tw finish coats or a painting process.that provides. a paint coating equivalent to or better than the foregoing. The vendor shall certify, in writing, that the paint and technique used is in conformancee with the latest edition of SCCTD'S Standard Specifications and is compatible with the material being painted. Acceptable colors as approved by SCCTD. 14. All concxte used shall be per the SCCTD Standard Specifications, latest edition. Calcium Chloride may be added to accelerate setting in the-amounts indicated in the SCCTD Standard Specifications, latest edition. . All surfacing installed shall match the existing surrounding surfacing in color and texture, whether it be concert, tile, terrazzo, or any other special surfacing.. 15. Dissimilar metals shall be insulated by painting with a mastic an all contact points. F. Shelter Relocation Shelters may be removed and relocated because of private development, City /County projects, public convenience, transit route or stop changes, repeated vandalism to a shelter, or at the request of the SCCTD Deputy Director, Marketing and Service Development. SCCTD does not guarantee any specific site for the duration of the Agreement. Contractor shall bear the full cost of removal of a maximum of ten percent (10 %) of the total number of existing shelters per year, including, if affected by removal, sidewalk and curb repair. Contractor agrees to unfasten the shelter from its site, and SCCTD agrees to transport the shelter off - premises and to pay the cost of transporting, destroying, storing or handling of the shelter. This cost will not exceed $150.00 per shelter during the first three years of initial buildout. In each case of removal required due to private development, SCCTD will ask that the City /County require -26- developers to pay all costs associated with relocation. Additionally, the Contractor may request permission of the SCCTD Deputy Director, Marketing and Service Development to relocate a shelter, _at the Contractor's expense, when the shelter has been repeatedly vandalized or damaged. All shelter relocations shall commence within five (5) days of Notice to Proceed unless otherwise stated by the SCCTD Deputy Director, Marketing and Service Development. In the event that the Contractor fails to repair, replace or relocate shelters within the time herein specified, SCCTD may at its sole discretion, cause the repair, removal or relocation of said shelter and apply that portion of the Contractor's security deposit toward the cost thereof. Any costs not satisfied in the manner above shall be paid directly to SCCTD by the Contractor within ten (10) days following receipt by Contractor of the invoice therefor. IX. TERM AND TERMINATION A Tenn and Extension of Term This.Agreement shall. terminate fifteen (15) years�.from its date of _ commencement unless said term is sooner terminated as provided herein. This Agreement shall commence on the date this Agreement is made and entered into. If for any reason SCCTD is enjoined or otherwise prevented by court action from allowing Contractor to commence operations as provided herein or if .any City /County unreasonably delays or withholds issuance of any permits or approvals SCCTD shall not be subjected to any liability therefor, nor shall such failure affect the validity of this Agreement or the obligations of Contractor hereunder or extend the term hereof, except as provided below. At the option of either party this Agreement shall be suspended and its term extended for that amount of time equal to the duration of any court injunction or other action which temporarily prevents or temporarily significantly impairs that party from performing its respective duties or substantially receiving its benefits under this Agreement. Notice of a party's election to exercise this option shall be served in writing to the other party within ten (10) days of the court's action. 2. If any court action permanently prevents or permanently and significantly impairs either party hereto from performing its respective duties or substantially receiving its benefits under this Agreement, that party, at its option, may cancel this Agreement, in which event the parties shall be discharged from all obligations hereunder. Notice of a party's election to exercise this option shall be served in writing to the -27- other party within ten (10) days of the court's action. For the purposes of this paragraph, court action cannot be regarded as having a permanent effect unless that action: has become.-final when all appeals have been exhausted or the time to obtain appellate review has expired. 3. If the Contractor has made a good faith effort to submit location/construction drawings and permit applications and to construct shelters on a timely basis (as set forth in Section VIII A above) and if the City /County agencies have not approved one hundred -fifty (150) - permits to begin shelter construction within six (6) months after the - .conm encement of this Agreement Contractor shall have the remedies provided for in Part VB1. However, in that case, unless, the Contractor and SCCTD can agree upon an extension of time for obtaining such permits, this agreement shall terminate. _ B. Options for Disposition of Shelters Upon Termination Upon termination of -phis Agreement ,by_expiration of its term, or pursuant to. -= Section IX.C.1., SCCTD shall have. the option-to --either �(a),assume title:to all shelters by purchasing them from Contractor free and -dear of liens and - encumbrances, at the current book value of the shelters shown on the, audited contractor's books and records; or, (b) direct Contractor to-remove the shelters and restore the respective sidewalks and curbs to their proper condition within ninety (90) days, at Contractor's own cost and expense, and if Contractor fails to do so within ninety (90) .days, SCCTD may, without further notice and at Contractor's cost and expense, remove the shelters and restore the sidewalks and curbs to their proper condition; or (c) negotiate an extension of this Agreement with the Contractor. Com»enoement of legal proceedings, audit, or other administrative action not expressly declared to be an election under this subsection shall not be deemed an election under this subsection nor a waiver of SCCTD's right to exercise any other option provided herein. In the event the parties fail to mutually agree upon an appraiser under option (a) above, the Superior Court in and for the County of Santa Clara shall appoint one. C. Default of Contractor In the event that Contractor fails to carry out any material term, covenant, condition, or promise herein set forth, SCCTD shall have, and may elect among, the following remedies: 1. Termination. SCCTD may serve upon Contractor thirty (30) days' written Notice of Termination of this Agreement, and if contractor does not cure the default within thirty (30) days, SCCTD may terminate this Agreement and may assume title to the shelters and assume all _: advertising contracts of Contractor relating to this Agreement. Contractor thereafter shall not be entitled to any revenues whatsoever on advertising,in place after the said termination date. In the event of such termination, the parties agree that from the nature of the breach, SCCTD's actual damages would be impracticable and extremely difficult to fix, and that SCCTD shall be entitled to the immediate payment of the full amount of the letter of credit provided pursuant to Paragraph B of Section X ( "Letter of Credit Security Deposit") hereof as liquidated damages to cover the cost of maintenance of shelters to SCCTD hereunder. No such termination of this Agreement by SCCTD shall in any way affect the obligations of the Contractor or the rights of SCCTD which have accrued prior to such termination. 2. Actual Damages. In the event that SCCTD elects not to serve a Notice of Te nation of this Agreement, or if such a Notit is served r but Contractor's default is cured, then . SCCTD shall be entitled to recover from Contractor any loss or damage which SCCTD may have incurfedf k"reason of Contractor's default; and SCCTD may- if it choose to,do so, utilize the procedure set.forth in.paragraph_B of _ - Section -. of Credit Security Deposit.) to :resolve its _claim for . loss or damage. 3. Transfer of Title. In the event any default is not timely cured and SCCTD terminates this Agreement, title to all transit shelters shall immediately transfer to SCCTD without cost to SCCTD. 4. Other Remedies. The exercise of the remedies provided for in this section shall be cumulative and shall in no way affect ,any other remedy available under the law to SCCTD. D. Default of SCCTD Contractor may cancel this Agreement and terminate its obligations hereunder at any time subsequent to the commencement of the term or any extension thereof upon or after a material breach of the Agreement by SCCTD which is not cured within thirty (30) days after service of a written notice from Contractor of the existence of such breach. The Contractor shall then be entitled to return of its letter of credit, the pro-rated portion of the $750,000.00 advance payment as reflected in Part 1113, supra, and rescission of its obligation to maintain the payment bond in addition to all other remedies available to it by law. E. Termination Prior to Term SCCTD may cause the removal of all shelters or advertising contained therein located within the territory of SCCTD prior to the end of the term of -29- the Agreement by serving upon Contractor written notice of termination of this Agreement one hundred and twenty (120) days in advance of said date of termination. SCCTD shall, thereafter, in its discretion exercise Option 1 or Option 2 below. SCCTD shall remove the advertising displays from every transit shelter covered by this Agreement and SCCTD shall pay to Contractor the current value for every such transit shelter owned by the Contractor. The- method of calculating the current value of a transit shelter shall be as follows: Shelter Depreciation Months Current value = Unit Price x Period - In Depreciation (In months) Service Period (In months) For purposes of calculating the current values the transit shelter unit price shall be the unit price listed in the Contractor's finandal.plan - submitted with the bid documents, plus the installation costs of the transit shelter, the depredation period for transit shelters will be ninety -six (96) months; the number of months in service will be calculated from the date the transit shelter is placed in service, to the date of termination. The month the shelter is placed in service and the month of date of termination shall be counted as full months in service for calculating the current value. 2. Contractor shall remove or cause to be removed all shelters covered by this Agreement and owned by Contractor and restore the respective locations to their original conditions. SCCTD shall reimburse to Contractor the reasonable costs associated with such removal and restoration in addition to the current value of all shelters in the public rights -of -way specified in Option 1 above. Title to all transit shelters, free and dear of liens and encumbrances, at SCCTUs option, shall be granted to SCCTD upon payment of the amounts to Contractor as specified in Options 1 and 2 above. SCCTD warrants that after exercising either Options 1 or 2, it will perform the tasks which Contractor agreed to perform under this Agreement for the remainder of the term using SCCTD employees, and under no circumstances will SCCTD subcontract these services to another member of the outdoor advertising industry. K13 X. MISCELLANEOUS CONTRACT PROVISIONS A. Santa Clara County Office Contractor shall maintain a fully staffed office within Santa Clara County in order to facilitate coordination between SCCTD and Contractor. B. Letter of Credit Security Deposit and Performance Bond 1. Letter of Credit. Within seventy -two (72) hours after receiving - =notification of execution of this Agreement, Contractor shall establish, and throughout the term of this Agreement shall maintain, with a national or California bank having at least one branch office within Santa Clara County and acceptable to Contractor, a confirr red, irrevocable letter of credit in favor of SCCTD in the amount of three hundred fifty thousand dollars ($350,000). The original copyof the letter of credit shall be delivered to SCCTD within the foregoing -deadline. Said letter of credit shat - have an original term of one year, �. with automatic extensions of the full .thrnee hundred. and fifty thousand - dollars ($350,000) amount through the life of the Agreement. -. Said _ -- letters of credit shall provide that payment of the entire face amount of the letter of credit or any portion thereof, shall be made to SCCTD upon presentation of a written demand to the said bank signed by the Director on behalf of SCCTD. The said letter of credit shall constitute a security deposit guaranteeing faithful performance by Contractor of all terms, covenants, and conditions of thisAgreement, including all monetary obligations set forth herein. If Contractor defaults, with respect to any material provision of this Agreement, SCCTD may, but shall not be required to, make its demand under said letter of credit for all or any portion thereof to compensate SCCTD for any loss or damage which SCCTD may have incurred by reason of Contractor's default. SCCTD shall present its written demand to said bank for payment under said letter of credit only after SCCTD shall have made its demand for payment directly to Contractor, and five (5) full business days have elapsed without Contractor having made payment to SCCTD. SCCTD need not terminate this Agreement in order to receive compensation for its damages. If any portion of said letter of credit is so used or applied, Contractor shall within ten (10) business days after written demand thereof, reinstate the letter of credit to its original amount; Contractor's failure to do so shall be a material breach of this Agreement. Said letter of credit shall provide for sixty (60) days' notice by said bank to SCCTD in the event of non -extension; and in the event of any such non -extension, Contractor shall replace said letter of credit at least ten (10) business days prior to expiration, and if Contractor fails -31- to do so, SCCTD shall be entitled to present its written demand for payment of the entire face amount of said letter of credit; any amounts so received by SCCTD shall be returned to Contractor upon replacement of the letter of credit. If SCCTD shall receive any payments from the aforementioned bank under said letter of credit by reason of having made a wrongful excessive demand for payment, SCCTD shall return to Contractor the amount by which SCCTD's total receipts from Contractor and from the bank under said letter of credit shall exceed the amount to which SCCTD rightfully is entitled, together with interest at the legal rate of interest, but SCCTD shall not otherwise be liable to Contractor for any damages or penalties.. 2. Perfommanoe Bond and Labor and Materials Payment Bond. Within seventy -two (72) hours after receiving notification of execution of this Agreement, the Contractor shall file with SCCTD a perfom3ance bond and a labor and- materials payment bond each in a sum not less than three hundred thousand dollars (300,000.00) covering concrete and electricaVwork for the installation of shelters under this Agreement. �- These bonds shall be substantially in the form set forth in Attachment B, Performance Bond for Public Works, attached to this Agreement and incorporated herein by this reference. The surety-on these bonds shall be either a California admitted surety or a current United States Treasury Department listed surety (listed in the Federal Register) and possess a current AM. Best A IV rating or a current Standard and Poors rating of A or above. In lieu of the foregoing, a surety of equal financial stability may be substituted with the approval of SCCTD's Director. During the period covered by this Agreement if any of the sureties upon the bond shall become insolvent or unable in the opinion of SCCTD to pay promptly the amount of such bonds to the extent to which surety might be liable, Contractor, within thirty (30) days after notice given by SCCTD to Contractor, shall by supplemental bonds or otherwise, substitute another and sufficient surety approved by SCCTD in place of the surety becoming insolvent or unable to pay. If Contractor fails within such thirty (30) day period to substitute another and sufficient surety, the Contractor shall, if SCCTD so elects, be deemed to be in default in the perfommanoe of his obligations hereunder and upon the said bonds, and SCCTD in addition to any and all other remedies, may terminate the Agreement or apply the proceeds of the letter of credit for which the surety is unable to pay as collateral for the performance of the conditions of the bond. -32- The performance and payment bonds shall apply to the construction of the 564 shelters, and shall be effective relating to those shelters during the time and in the manner required by California law. _ C. Subcontractors. SCCTD grants the. Contractor the authority to hire subcontractors as Contractor deems necessary to fulfill the requirements detailed in this agreement. D. Indemnity and Insurance. Contractor shall provide indemnification and insurance asset forth in .Attachment A, Indemnification and Insurance, which Attachment is attached hereto and incorporated herein by this reference. Coverage under the ind6mn- ification and insurance provisions shall apply to both - SCCTD_ (referred ._.. - -... to in Attachment A as "District') and to the County of Santa Clara ('County'). _ E, Social Securit_..y. Un=loyment Compensation Contractor shall, upon request, furnish to SCCTD adequate evidence of provision for compliance with laws relating to Social Security, Unemployment Compensation and Workers Compensation Insurance. F. Authorized Representatives and Notices: SCCTD and Contractor shall each designate an Authorized Representative _... who has authority to act on its behalf for this Agreement. All notices provided for under this Agreement shall be in writing and shall be served on the Authorized Representative of the receiving party and deemed to have, been duly given (i) on the date of delivery, if delivered personally to the party to whom notice is given, or if made by telecopy directed to the party.to whom notice is to be given at the party's telecopy number listed below, or (ii) on receipt, if mailed to the party to whom notice is to be given by registered or certified mail, return receipt requested, postage prepaid and properly addressed as follows: -33- SCCTD: James B. Unites Contract Services Manager Santa Clara County Transportation Agency 3331 North First St. Bldg. B. San Jose, CA 95134 Telephone: (408) 321 -7032 FAX No: (408) 955 -9754 Contractor: Steven J. Hunt, Senior Exec.. Vice Pres. & CFO. Patrick Media Group, Inc 737 EIlMichigan Ave., #1300 Chicago, IL 60611 (312) 573 -1000 (312) 573 -1099 David M. McWalters, - __....Real .Estate Manager.. Patrick Media Group, Inc. -1601 Maritime Street Oakland, CA. 94607 (510) 835 -5900 : . Fax: (510) 8349410 Changes in the name or address of such Authorized Representatives shall be made by advance written notification to the other party. G. Bankruptct or Reoruanization proceedings In the event that Contractor shall file a voluntary petition in bankruptcy or in the event that proceedings in bankruptcy shall be instituted against Contractor and Contractor is thereafter adjudicated bankrupt pursuant to such proceedings, or in the event that a court shall take jurisdiction of Contractor and its assets pursuant to proceedings brought under the provisions of any Federal bankruptcy reorganization act, or in the event that a receiver of Contractor's assets shall be appointed, or in the event that Contractor executes an assignment for the benefit of its creditors, SCCTD shall have the right to terminate this Agreement forthwith. Such ten-rination shall, in such instance, be deemed to occur upon the happening of any of said events and, from henceforth, Contractor or its successor in interest by operation of law or otherwise shall have no rights in or to the within Agreement or to any of the privileges herein conferred. H. No Waiver of Subsequent Breaches or Defaults The failure of either party to insist upon a strict performance of any of the terms, conditions and covenants herein by the other party shall not be 10 deemed a waiver of any subsequent breach or default in the tem-is, conditions and covenants herein contained. I. Assignment This Agreement and the rights granted therein may not be assigned by Contractor without the prior written consent of SCCTD. Such consent shall not be unreasonably withheld. This Agreement and the rights granted therein may not be assigned by an assignee of Contractor without the prior written consent of SCCTD. Any assignment in violation of this provision shall be void. J. Applicable Law All questions pertaining to the validity and interpretation of this Agreement shall be determined in accordance with the laws of the State of California applicable to contracts made and to be performed within the State. K Taxes Contractor shall pay all lawful taxes and assessments levied or assessed on its personal property, on any possessory interest in real property and any taxes or assessments levied in connection with its operation under this Agreement. L. Legal Relationship The parties hereby declare that it is not their intention by this Agreement or any of the terms thereof to create a partnership, joint venture or agency relationship between them. M. Section Headings The section headings contained herein are for convenience in reference and are not intended to define or limit the scope of any provision hereof. N. Entire Agreement :- This Agreement represents the entire integrated Agreement between SCCTD and Contractor, and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by a written instrument signed by both SCCTD and the Contractor. -35- In 1MTNESS WHEREOF, the parties hereto have caused this Agreement to be executed, in duplicate, by their duly authorized officers on JUN 9� _ 1994 , 1994. SANTA CLARA COUNTY TRANSIT DISTRICT 1 Rod Diddon, Chairperson Santa Clara County Transit District Board of Supervisors CONTRACTOR - PATRICK MEDIA GROUP, INC. ATTEST---`,� , By: � PHYLLIS A PEREZ Clerk of the Board of Supervisors and ex -officio secretary of the Transit District APPROVED AS TO FORM AND LEGALITY: ROBERT A WEERS Deputy County Counsel (Title) CA CO CU GI LA LG MH MI PA SC SJ SV ABBREVIATIONS FOR CITIES CAMPBELL COUNTY OF SANTA CLARA CUPERTINO GI LROY LOS ALTOS LOS GATOS MORGAN HILL MILPITAS PALO ALTO SARATOGA SANTA CLARA SAN JOSE SUNNYVALE -37- ATTACHMENT A INDEMNIFICATION AND INSURANCE Indemni The Contractor shall indemnify, defend, and hold harmless the County of Santa Clara (hereinafter "County") and District, thf:ir officers, agents and employees from any claim, liability, loss, injury or damage arising out of, or in connection with, performance of this Agreement by Contractor and/or its agents, employees or sub- oontractors; excepting only loss, injury or damage caused. solely.by the acts or_ . . omissions of personnel employed by the County and/or District. It. is the intent of the parties to this Agreement to provide the broadest possible coverage for the County and District. The Contractor shall reimburse the County and District for all costs, reasonable attomeys' fees,:expenses and liabilities incurred wit4respect to any litigation in which the Contractor is obligated to indemnify, defend and hold F harmless the County and District under this Agreement. r. The County and the..District shall indemnify defend and hold.hammless the . = Contractor, its- directors, officers, agents and employees. :from -an any claim, liability.,..... - doss, injury or damage, including costs, expenses and reasonable attorneys' fees; - - - arising out of, or in connection with: (i) performance of this Agreement by County and the District; and (ii) damage, destruction or loss to transit shelters which are in place as of the date of the Agreement (the "existing shelters ") and damage to any property or injury to any persons arising out of or in connection with such existing shelters, exempting only loss, injury or damage caused solely by the acts or omissions of personnel employed by the Contractor. Insurance Without limiting the Contractor's indemnification of the County and District, the Contractor shall provide and maintain at its own expense, during the term of this Agreement, or as may be further required herein, the following insurance coverages and provisions: A Evidence of Coverage Prior to commencement of this Agreement, the Contractor shall provide on the District's own form or a form approved by the County's Insurance Manager an original plus one copy of a Certificate of Insurance certifying that coverage as required herein has been obtained and remains in force for the period required by the Agreement. The District's Special Endorsement form shall accompany the certificate. Individual endorsements executed by the insurance carrier may be substituted for the District's Special Endorsement form if they provide the coverage as required. In addition, a certified copy of the policy or policies shall be provided by the Contractor upon request. - EN This verification of coverage shall be sent to the address as shown on the District's Certificate of Insurance form. The Contractor shall not receive a Notice to Proceed with the work under the Agreement until it. has obtained all insurance required and such insurance has been approved by the District. This approval of insurance shall neither relieve nor decrease the liability of the Contractor. B. Notice of Cancellation or Reduction of Coverage All policies shall contain a special provision for thirty (30) days prior written notice of any canoellation or reduction in coverage to be sent to the Gerk of the Board of Supervisors, 70 W. Hedding..Street, San Jose, CA 95110, or to the address shown on the Certificate of Insurance. C. Quality Insurers (Liability and Surety) _.. 1. All coverages, except surety, shall be issued by companies which hold ..a current policy holder's alphabetic,and financial size category rating of -not less than A X,.acoording to the current Best's Key,Rating Guide. or a company of equal financial stability- that is approved- by:the County's - I nsurance/Risk Manager. 2. Surety coverage shall be required as follows: a. Either a California Admitted Surety OR a current Treasury . Listed Surety (Federal Register) to its specified dollar limitation AND b. Either a current A.M. Best A V rated Surety OR a current Standard and Poors (S & P) rating of A or above. •N C. In lieu of 1 & 2, a company of equal financial stability that is approved by the County's Insurance Risk Manager. D. Insurance Required 1. Comprehensive General Liability Insurance - for. bodily injury (including death) and property damage which provides limits of not less than one million dollars ($1,000,000) combined single limit (CSL per occurrence. •- -39- 2. Commercial General Liability Insurance - for bodily injury (including death) and property damage which provides limits as follows: a. General limit per occurrence - $1,000,000 b. General limit aggregate - $2,000,000 c. Products/Corrpleted Operations - $2,000,000 d. Personal Injury limit - $1,000,000 If coverage is provided under a Commercial General Liability Insurance form, the carrier shall provide the County Insurance Manager with a quarterly report of the amount .of aggregate limits expended to that date. If over 50% of the aggregate limits have been paid or reserved, the District may require additional coverage to be yr purchased=by the Contractor to restore the required limits. 3. For either type insurance, coverage shall. include: a. Premises and Operations b. Products/Completed Operations with limits of two million dollars ($2,000,000) per occurrence/aggregate to be maintained for three (3) years following acceptance of the work by the District. C. Contractual Liability expressly including liability assumed under this Agreement. If the Contractor is working near a-- railroad operation, any exclusion as to performance of operations within the vicinity of any railroad bridges, trestle, track, roadbed, tunnel, underpass or crossway shall be deleted. d. Explosion, Collapse and Underground Hazards (X,C and U) e. Personal Injury liability with deletion of exclusions for 1) liability assumed under contract, and 2) suits brought by employees f. Independent Contractors liability g. Broad Form Property Damage liability; and .M h. Severability of Interest clause providing that the coverage applies separately to each insured except with respect to the limits of liability. i. Advertising liability 4. For either type insurance, coverage shall include the following endorsements, copies of which shall be provided to the District: a. Additional Insured Endorsement: Such insurance as is afford by this policy shall also apply to the County of Santa Clara and the Santa Clara County Transit District, and members of the Board of Supervisors of the County of Santa Clara and the Santa Clara County Transit-District and the officers, agents, and employees of the County of Santa Clara and the Santa Clara County Transit District, individually and collectively, as additional insureds. b. Primary Insurance Endorsements: Such insurance as is afforded by the additional insured endorsement shall apply as primary insurance, and other insurance maintained by the County of Santa Clara and the Santa Cara County Transit District, their officers, agents, and employees shall be excess only and not contributing with insurance provided under this policy. C. Notice of Cancellation or Change of Coverage Endorsement: This policy may not be canceled nor the coverage reduced by the Company without 30 days' prior written notice of such cancellation or reduction coverage to the County of Santa Clara and the Santa Clara County Transit District at the address shown on the Certificate of Insurance. d. Contractual Liability Endorsement: This policy shall apply to liability assumed by the insured under' written contract with the County of Santa Clara and Santa Clara County Transit District. e. Personal Injury Endorsement: The provisions of this policy shall provide Personal Injury coverage, including deletion of the standard exclusions for -41- liability assumed under contract and suits brought by employees. f. Severability of Interest Endorsement: The insurance afforded by this policy shall apply separately to each insured who is seeking coverage or against whom a claim is made or a suit is brought, except with respect to the Company's limit of liability. -_ - . Z g. -- X C & U (Explosion, Collapse and Underground) Endorsement: It is agreed that this policy has been issued so that coverage is provided for X, C and U hazards. h. Broad Form Property Damage Endorsement: _. It is agreed that the provisions ',of this policy have been -- extended to- provide Broad Form. Property Damage coverage. ... 5. Claims Made Coverage - If coverage is written on a cla'kms made basis, the Certificate of Insurance shall dearly state so and evidence of coverage extending from the date of execution of this Agreement, or from the date of the first performance of services, whichever date is earlier, until three (3) years from the date the work or service are accepted as completed shall be included. The following additional information shall be provided: a. Defense coverage included in the limit (Yes or No) b. Aggregate limitation - General Aggregate - Products/Completed Operations aggregate C. Retroactive date, which shall be no later than the date of execution of the Agreement or the date of first performance of services, whichever date is earlier d. Length of time for extended reporting period e. Limitations on invoking reporting period (if other than non - payment f. Is "Notice of Circumstances" allowed (Yes or No) -42- 6. Comprehensive Automobile/Aircraft/Watercraft Liability Insurance for bodily injury (including death) and property damage which provides total limits of not less than.-one million dollars .($1,000,000) combined single limit per occurrence applicable to all owned, non -owned and hired vehides/aircraftt watercraft. This coverage may be waived in writing by District if it determines there is no significant exposure to these risks. 7. Workers' Compensation and Employer's Liability Insurance for a. Statutory California Workers' Compensation coverage including a broad form all- states endorsement. b. Employer's Liability coverage for not less than one million dollars ($1,000,000) per occurrence for all employes engaged _.. -.. in services or operations under this Agreement....;:.. c. Inclusion of the County-and District and their governing board, officers, representative, .agents, and employees as additional...., _ ,r insureds, or a waiver of subrogation. d. Cross liability clause providing that the insurance applies. separately to each insured except with respect to the limits of liability. e. Coverage under the United States Longshoreman's and Harbor Workers' Act shall be provided when applicable. f: Should any such work be sublet, the Contractor shall require each subcontractor of any tier similarly to comply with this section, all in strict compliance with applicable federal and state laws. 8'. Contractor's Equipment Insurance on an "all -risk" basis covering equipment owned, leased, or used by the Contractor. Such insurance shall include an insurer's waiver of subrogation in favor of the Owner, County and District. Contractor shall indemnify, defend, and hold harmless the Owner, County and District for any loss or damage to its equipment. This coverage may be waived by the Insurance Manager, but the Contractor hereby releases and holds harmless the County and District for any loss or damages to its equipment. 9. Special Provisions The following provisions shall apply to this Agreement: -43- a. The foregoing requirements as to the types and limits of insurance coverage to be maintained by the Contractor and any approval of said insurance by the County and District or its insurance consultant(s) are not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Contractor pursuant to this Agreement, including but not limited to the provisions concerning indemnification. b. The District acknowledges that some insurance requirements contained in this Agreement may be fulfilled by self- insurance on the part of the Contractor. However, this shall not in any way limit liabilities assumed by the Contractor under this Agreement. Any self- insurance shall be approved in writing by the District. C. Should any of the work under this Agreement be sublet, the - Contractor shall require each of its subcontractors of any tier io F_ provide the aforementioned coverages, orn.Contractor may F insure subcontractors under its own policies. d. The District reserves the right to withhold payments to the Contractor in the event of material noncompliance with the insurance requirements outlined above. / I 10. Bond Requirements A. Contract Bonds - Prior to execution of the Agreement, Contractor shall file with the District on the approved fom-s, the surety bond in the amount and for the purposes set forth in the Agreement, duly executed by a reputable surety company satisfactory to District and Contractor shall pay all premiums and costs thereof and incidental thereto. Each bond shall be signed by both Contractor and the sureties. Should any surety or sureties be deemed- unsatisfactory at any time by the District, notice will be given Contractor to that effect, and Contractor shall forthwith substitute a new surety or sureties satisfactory to the District. No further payment shall be deemed due or will be made under the Agreement until the new..._ sureties qualify and are accepted by the District. All .alterations, time extensions, extra and, additional work, . and . other changes authorized by the Agreement may be rnade without securing consent of the surety or- sureties on the Agreement bonds. -45- ATTACH T B Performance-Bond and Payment Bond for Public Works PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS: That WHEREAS, the Director of the Transportation Agency of the County of Santa Clara/Santa Clara County Transit District, State of California, has awarded to (hereinafter designated as "Principal ") a contract for Contract: , and WHEREAS, said Principal is required under the terms of said contract to furnish a bond for the faithful performance of said contract, NOW, THEREFORE, we, the Principal and as Surety, are held and firmly bound unto the County of Santa Clara /Santa Clara County Transit District (hereinafter called "SCC /SCCTD "), in the penal sum of ($ ) lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators and successors, jointly and severally, firmly by these presents. The condition of this obligation is such that if the above bounden Principal, his /her or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements in the said contract and any alteration thereof made as therein provided, on his /her or their part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless SCC /SCCTD, its officers, agents, and employees, as therein stipulated, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect. And the said Surety for value received, hereby stipulates and agrees that no charge, extension of time, alteration or addition to the terms of the contract or to the work to be performed thereunder or the specifications accompanying the same shall in any wise affect its obligations on this bond, and it does hereby waive notice of any change, extension of time, alteration or additions to the terms of the contract or to the work or to the specifications. In the event suit is brought upon this bond by SCC /SCCTD and judgment is recovered, Surety shall pay all costs incurred by SCC /SCCTD in such suit, including a reasonable attorney's fee to be fixed by the Court_ 46 PERFORMANCE BOND (Continued) IN WITNESS WHEREOF two identical counterparts of this instrument, each of which shall for all purposes be deemed an original thereof, have been duly executed by Principal and Surety above named, on the day of 719 (Seal). (Seal) (Seal) Principal (Seal) (Seal) Surety Address NOTE: Signature of those executing for Surety must by properly acknowledged. r+7 PAYMENT BOND FOR PUBLIC WORKS KNOW ALL MEN BY THESE PRESENTS: That WHEREAS, the Director of the Transportation Agency of the County of Santa Clara/Santa Clara Transit District, State of California, and (hereinafter designated as "Principal ") have entered into an agreement for the furnishing of all materials, labor, services and transportation, necessary, convenient and proper to Contract which said Agreement dated 119 and all of the Contract Documents attached to or forming a part of said Agreement, are hereby_:referred to and made a part hereof; and WHEREAS, said Principal is required by Chapter 5 (commencing atSection 3225) and Chapter 7 (commencing at Section 3247), Title 15, Part 4, Division 3 of the California Civil Code to furnish a bond in connection with said contract; - - NOW THEREFORE, we, the Principal and as Surety, are held and firmly bound unto the Public Entity in the penal sum of Dollars (S ), lawful money of the United States of America for the payment.of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. THE CONDITIONS OF THIS OBLIGATION IS SUCH that if said Principal, his or its subcontractors, heirs, executors, administrators, successors, or assigns, shall fail to pay any of the persons named in Section 3181 of the California Civil Code, or amounts due under the Unemployment Insurance Code with respect to work or labor performed by any such claimant, the Surety will pay for the same, in an amount not exceeding the sum hereinabove specified, and also, in case suit is brought upon this bond, a reasonable attorney's fee to be fixed by the court. This bond shall inure to the benefit of any of the persons named in Section 3181 of the California Civil Code, so as to give a rigbt of action to such persons or their assigns in any suit brought upon this bond. Ir; PAYMENT BOND FOR PUBLIC WORKS (Continued) It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement hereinabove described or pertaining to or relating to the furnishing of labor, materials, or equipment therefor, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme or work of improvement hereinabove described, nor by any rescission or attempted rescission of the contract, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach or contract between the owner or Public Entity and original contractor or on the part of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Section 3110 or 3112 of the California Civil Code, and has not been paid the full amount of his claim and that Surety does hereby waive notice of any such change, extension of time, addition,_, alteration or modificationAierein.mentioned. IN WITNESS WHEREOF two -identical counterparts of this instrument, each of, which shall for all purposes be deemed an original thereof, have been duly executed by he Principal and Surety above named on the day of 1.19 Principal (Seal) (seal) -.. (Sea]) (seal) _ (Seal) Surety Address NOTE: Signature of those executing for Surety must by properly acknowledged. SALu.,,rOGA CITY COUNCIL EXECUTIVE SUMMARY NO. �15Y AGENDA ITEM (7) MEETING DATE: APRIL 5, 1995 CITY MGR.: ORIGINATING DEPT.: PUBLIC WORKS DEPT. HEAD: A, j.J.' , I SUBJECT: Acceptance of Grant Deed for property adjacent to Lisa Marie Court in connection with Phase 2 Final Map Approval for Tract No. 8560 (Kerwin Ranch) Recommended Motion(s): Move to adopt the resolution accepting the Grant Deed and direct staff to record the resolution and the deed. Report Summary: Attached is a Grant Deed to the City from Fruitvale- Saratoga Avenue Associates, the developer of Tract No. 7919 (Lisa Marie Court) , for a residue parcel created by that development. The residue parcel is designated as Parcel A on the map of Tract No. 7919. The reason that the residue parcel is being offered to the City at this time is so it can be included in the realigned street right -of -way which will be offered to the City on the Phase 2 final map for Tract No. 8560 (Kerwin Ranch) when that map comes before the City Council for final approval which is expected on April 19. Since the developer of the Kerwin Ranch is different than that of Lisa Marie Court, ownership of the residue needs to transfer to the City separately from and in advance of the Phase 2 final map approval of Tract No. 8560. The Phase 2 final map will then note the City as owner of the residue and reference the recording information of the Grant Deed. Perhaps the attached letter from JMH Engineers to the City dated March 22 provides a more straightforward explanation of this transaction. In order for the City to accept the Grant Deed, adoption of the attached resolution is necessary. Afterwards, the City Clerk will record the Grant Deed along with the resolution. Fiscal Impacts: There are none associated with this transaction. Since the City will be recording the Grant Deed and resolution, there are no recording fees. Advertising, Noticing and Public Contact: Nothing additional. Consequences of Not Acting on the Recommended Motions: The City would not be able to accept the Grant Deed and the Phase 2 final map of Tract No. 8560 will be delayed. While it is also possible for ownership of the residue parcel to transfer from the developer of Tract No. 7919 to the developer of Tract No. 8560, this would involve an additional and more complicated sequence of events with the end result being the same, i.e. the City will own the residue when it accepts the offers of street dedication from the developer of Tract No. 8560. Consequently, staff and the developer of Tract No. 8560 have agreed to the above process. Follow Up Actions: The City Clerk will record the Grant Deed along with the resolution. Attachments: 1. Resolution accepting Deed of Property. 2. Grant Deed. 3. Letter from JMH Engineers dated March 22. 4. Portion of map of Tract No. 7919. 5. Map showing residue parcel, Lisa Marie Ct. and proposed Kerwin Ranch Ct. RECORDING REQUESTED BY AND WHEN RECORDED MAIL THIS DEED AND, UNLESS OTHERWISE SHOWN BELOW, MAIL TAX STATEMENT TO: N.,,. City of Saratoga Strom 13777 Saratoga Ave. Ad*mSaratoga, CA 95070 city a sous ZIP order No THE UNDERSIGNED GRANTOR(s) DECLARE(s) City of Conveyance Tax is $ ne Parcel No. 389-34-21 REC RMF MICRO RTCF LIEN SMPF PCOR LINE FOR GRANT DEED Documentary Transfer Tax is $ None ❑ computed on full value of interest or property conveyed, or ❑ full value less value of liens or encumbrances remaining at time of sale FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, FRUITVALE- SARATOGA AVENUE ASSOCIA..TES, a California limited partnership hereby GRANT(S) to the CITY OF SARATOGA the following described real property in the City of Saratoga county of Santa Clara state of California: PARCEL A, as shown on that certain Map of Tract No. 7919, which map was filed for record in the office of the Recorder of the County of Santa Clara, State of California on January 27, 1987 in Book 570 of Maps, pages 44 and 45. EXCEPTING THEREFROM, the underground water or rights thereto, with no right of surface entry, as granted to San Jose [eater Company by. insrtrnent recorded March 18, 1987 in Book K075, page 1324, Official Records. Dated STATE OF CALIEORNM,A COUNTY OF--'2(U-d-6- C I L V O - } S.S. On � C(l1 U,k V 6 5 before me, --1 Wi1m L. F e5'L a Notary Pubic in and for said County and State, personally appeared n��l'(LVI _i Ke.IIU personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he /she/they executed the same in his /her/their authorized capacity(ies) and that by his/her/ their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature FRUITVALE- SARATOGA AVENUE ASSOCIATES a California limited partnership BY: Kelly Gordon Development Corp. a California corl2oration as Gener-ol Partner . r vF A TAMMY �JpfR L. FRIESZ Comm. '11004805 > ° NOTARY PUBLIC - CALIFORNIA L ` Santa Clara County 'rUFOP MY Go o Santa O.pires Sept. 22,1997 -► (Ibis area for offidal notmial seal) MAIL TAX STATEM914TS TO PARTY SHOWN ON FOLLOWING LINE IF NO PARTY SHOWN_ MAIL AS nIRFCTFn AROVF Name Street Address D-4 City & State 3/94 J ENNINGS - McDERMOTT - HEISS INC. JMH . 950 S. BASCOM AVENUE • SUITE 2111 SAN JOSE, CALIFORNIA 95128 TEL. (408) 286 -4555 FAX (408) 286 -4558 Civil Engineering Land Planning Land Surveying March 22, 1995 City- of Saratoga 13777 Fruitvale Avenue Saratoga, CA 95070 Attn.: Larry Perlin City Engineer's Office Re: Our Job #3328 /Tract No. 8560 Dear Larry: Some weeks ago, Jim Sisk delivered to you a deed to the City of Saratoga for a parcel of land located at the intersection of Lisa Marie Court and Saratoga Avenue. This particular property was a residue parcel designated -Parcel A" remaining after the dedication of Lisa Marie Court in conjunction with Tract No. %919 As you know, the Planning Commission, when approving the Tentative 1.1-1ap for the adjacent kerwin Ranch development, required that the Lisa Marie Cou:•t intersection be re- aligned in a new configuration and renamed l eru7in Ranch Court. This particular parcel will become part of the new Eerwin Ranch Court right-of- in way. Since we are finalizing the processing of the second phase of the er - l , Ranch, namely Tract No. 8500, it is necessary to proceed with recordation of this particular deed. We would appreciate it if you could arrange for acceptance and recordation so the recording information can be referenced on the Final Map for Tract No, 8560 which should be submitted to the City Council within the neat few «reeks. Your help in this regard would be greatly appreciated. Very truly yours, illiam eiss cc: De Anza Properties PARCEL 'A' -RESIDUE PARCEL. NOT A BUILDABLE LOT OR APPROVED BUILDING SITE 3i\ O / P / � s9 LISA MARIE COURT 2 y��• f 13.36 po: a� '06' W 451.56' � r 1Ri 231jol — �d 108.50, �9 G N 0.0S: W 172.00' — 4. 30.1 . 4 P.S.E 8 5.5E• v 9 1 33' L- 29- 9'54' E p 52.78'R.�O 0 �� A. 3B 3O' 112.67' N R -ao.00 %-• B \,.� rs y ! 24.14' 88.53' Ka222 4.1oo.oa• a .75.09' V3' O Q 9� 6 �i � � — 0 -17'48'46* � Ra�2O 0� rLQ � J L•24.87' ^ N • \ 3A I ADO ♦ / •31.43• �' •,�. � � S' aq — W;p� 1 y \ \ fib' \ 0 1 E FOR \ �i P.S•D • 5 \ ...� LOTS 1 TO `G \ 4 N LOT- 3 LOT N 9y� �\ i S.F. W .2510.9.6 S.F. 23 429 S. F: al- • aD - z r. 1 N 1 P h z 10' 0O —� 0 . - 5. P.S.D,E. FOR r� LOT 5 ONLY :; .. ,; - rn95 1 nTc =- ,P.S.D.E. FOR LOTS SCALE 1" = 40 9e C O,rOi � Fi. s DEDICATION SS ORS SARATOGA VENUE /&Rz - N 14 °51'IC" W 543.476 15.97 14000 _ �� arr9,o5 L =2Q21 — P.E. & L.S.E. 10' P.S.E. &25°0 -40" L =7351 ei�' IIAM' 3916 KERWIN I-- RANCH , COURT N 0006 _ • SEE DETAIL'S P.S.E. VARIES 1 1 s 54" Granite Monument S O 16 29, 10 A= "' 17 L =9.25 1 ulsla or MEANING) �EXIST.23'P.S.E. N Per Tr. 79 I9 BW 4 I 3 CURVE DELTA ,/ LENGTH RADIUS A 4 °5 4'44 117.59' 150.Od B rl 8° 13'04 70.45' 143.05' P.S.E. o IIYIT 5 Of MO hI 1AMESS 0 .00' C7 o LS 2734 SE f 1. MIS �fT • 4, 9. L • IM44! -1-1 P X/ LISA OOURT \ Per TR.7919 R ■IS RANCH ,� Q00' PMIRT 1 001 14� 15 N s 25r N � 22,419* 10' P.S.E. &25°0 -40" L =7351 ei�' IIAM' 3916 KERWIN I-- RANCH , COURT N 0006 _ • SEE DETAIL'S P.S.E. VARIES 1 1 s 54" Granite Monument S O 16 29, 10 A= "' 17 L =9.25 1 ulsla or MEANING) �EXIST.23'P.S.E. N Per Tr. 79 I9 BW 4 I 3 CURVE DELTA ,/ LENGTH RADIUS A 4 °5 4'44 117.59' 150.Od B rl 8° 13'04 70.45' 143.05' P.S.E. o IIYIT 5 Of MO hI 1AMESS 0 .00' C7 o LS 2734 SE f 1. MIS �fT • 4, 9. L • IM44! -1-1 P X/ LISA OOURT \ Per TR.7919 R ■IS RANCH ,� Q00' PMIRT