HomeMy WebLinkAbout1998-10-19 City Council (6)..... City of Palo Alto
....................................................................................................... City Man agerlsReport
TO:HONORABLE CITY COUNCIL
FROM:CITY MANAGER DEPARTMENT: PUBLIC WORKS
5
DATE:OCTOBER 19, 1998 CMR:386:98
SUBJECT:APPROVAL OF PRIVATE MAINTENANCE AGREEMENTS WITH
LEONARD ELY, DEVELOPER OF 390 LYTTON AVENUE AND
ROXY RAPP COMPANY, DEVELOPER OF 499 UNIVERSITY
AVENUE FOR IMPROVEMENTS IN THE PUBLIC RIGHT-OF-WAY
RECOMMENDATION ¯
Staffrecommends that Council approve the following private maintenance agreements, and
authorize the Mayor to sign the agreements between the City of Palo Alto and: 1) Leonard
Ely, developer of 390 Lytton Avenue, and 2) Roxy Rapp Company, developer of 499
University Avenue.
BACKGROUND
Maintenance agreements between developers and the City are necessary to guarantee
ongoing maintenance of project improvements, while encouraging development that provides
both public benefit and individual expression within the street right-of-way. The use of
maintenance, agreements allows the Public Works Department to approve development
improvements that, by design or use of special materials, result in a higher level of
maintenance. The maintenance costs become the responsibility of the developer. The
purpose of the maintenance agreement is to identify, document, and regulate all maintenance
responsibilities in accordance with industry or Public Works Department standards. The
terms of each of the agreements also include standard language covering liability insurance,
indemnification provisions, and recordation instructions. These agreements have been
¯ approved by the City Attorney, and have been signed by each developer.
DISCUSSION
The following is a brief description of the developers’ maintenance responsibilities for each
site:
Leonard Ely, Developer of 390 Lytton Avenue
On July 28, 1997, Council adopted Ordinance No. 4436 which conditionally approved a
Planned Community zone change for a proposed development at 390 Lytton Avenue. The
development includes a new 18,921 square foot three-story office building, and a two-level
underground parking garage. One condition of the approval required the developer to enter
CMR:386:98 :Page 1 of 2
into a maintenance agreement with the City to permanently maintain all surface
improvements located adjacent to the property that encroach into the City’s street right-of-
way. The surface improvements include sidewalks, street trees, street tree wells, tree grates,
soil, special drainage, landscaping, irrigation, and lighting. An additional condition of
approval required the developer to create street frontages that contribute to the downtown
atmosphere including planting street trees, creating pedestrian space set back from the
property lines, and a pedestrian walkavay. This development is currently under construction
and is anticipated to be ready for occupancy by Autumn 1998. Separate from this action,
Public Works is working with the developer to execute a recordable encroachment permit
that will allow the basement garage to be located within the City’s right-of-way.
Roxy Rapp Company, Developer of 499 University Avenue
On August 6, 1996, the Architectural Review Board (ARB) approved with conditions the
proposed building at 499 University Avenue. The project included the construction of a new
three-story building at the comer of University and Cowper, and the installation of a special
custom-colored concrete public sidewalk. The ARB approved the installation of the custom-
colored sidewalk; however, approval was conditioned upon the developer entering into an
agreement with the City agreeing tO permanently maintain all sidewalk-related improvements
within the public right-of-way located adjacent to the-property.
RESOURCE IMPACT
The proposed maintenance agreements do not impact City resources, however, they describe
the terms and conditions of the developers’ maintenance responsibilities. The Public Works
Department’s use of the subject maintenance agreements will mitigate a higher level of
maintenance associated with the public improvements that are built to accommodate certain
unique developments within the street right-of-way.
POLICY IMPLICATIONS
The subject maintenance agreements do no represent any change to existing City policies.
ATTACHMENTS
Attachment A -
Attachment B -
Leonard Ely, Developer of 390 Lytton Avenue
R0xy Rapp, Developer of 499 University Ave
PREPARED BY:
DEPARTMENT HEAD:
GLENN S. ROBERTS
Director of Public Works
CITY MANAGER APPROVAL:
EMILY HARRISON
Assistant City Manager
CMR:386:98 Page 2 of 2
ATTACHMENT A
RECORDED WITHOUT CHARGE (GOVT. CODE
SECTIONS 6103, 27383) AT THE REQUEST
OF, A!~D W~EN RECORDED, MAIL TO:
City of Palo Alto
Office of City Attorney
250 Hamilton Avenue
Palo Alto, CA 94301
SPACE ABOVE THIS LINE FOR RECORDER’S USE
390 LYTTON AVENUE
MAINTENANCE AGREEMENT
THIS AGREEMENT is entered into on , 1998,
by and between the CITY OF PALO ALTO, a chartered city and a
municipal corporation of the State of California ("City") and
LEONARD W. ELY AND SHIRLEY R. ELY, CO-TRUSTEES OF THE .ELY TRUST UTA
1982, AS AMENDED ("Developer,,)’
WHEREAS, Developer is the owner of that certain real
property located in the City of Palo Alto, County of Santa Clara,
State of California, including an office building, generally known
and described as.390 Lytton Avenue, Palo Alto ("Property");
WHEREAS, upon request therefor by Developer, th~ City.
Council, by adoption of Ordinance No. 4436 (the "PC Ordinance"),
rezoned the Property to a PC (Planned Community) zoning district,
to allow Developer to develop the Property in accordance with the
terms and conditions thereof (the "Project~); .
.WHEREAS, in accordance with the PC Ordinance, Developer
installed certain street improvements, including four street trees
along each frontage street (Waverley and Lytton), as diagramedin
Exhibit "A-I";
WHEREAS, in;accordance with the PC Ordinance, Developer
dedicated to the City for public uses, the recessed areas along the
Lytton Avenue and Waverley Street right-of-ways andthe ten feet-
wide pedestrian walkway on the western side of the building, as
diagramed in Exhibit "A-I";
1980722 syn 0071381
WHEREAS, in accordance with the ~PC Ordinance, after
Developer’s construction of an underground parking garage as part
of the Project, Developer must enter into a maintenance agreement
with the City to permanently maintain all related subterranean and
surface improvements located adjacent to the Property that encroach
into the City’s street right-of-way, including but not limited to
sidewalks, street :tree wells, tree grates, street trees, soil,
special drainage, Landscaping, irrigation, and lighting; and
WHEREAS, Developer has obtained an Encroachment Permit
for portions of the underground garage structure ~that are located
under the sidewalk and planter strip, in the City’s right-or-way.
NOW, THEREFORE, in consideration of the following
covenants, terms, and conditions, the parties hereto agree:
I. TERM. The term of this Agreement shall commence
upon its execution by the parties, and shall continue for so long
as Developer or its successors and assigns own and operate the
Property.
2. GENERAL OBLIGATIONS. The parties agree, in
accordance with the PC Ordinance, that, subject to the following
terms and conditions of this Agreement, Developer, at its sole cost
and expense, shall construct, maintain, and repair or cause to be
constructed, maintained, and repaired, all items outlined in
Sections 3 through 8, as more fully described below.
3. PA/<KING LOT ACCESS ALLEY.A ten feet-wide
pedestrian walkway on the western side of the building shall be
kept clear at all times. Specific maintenance duties shall
include, but not be limited to, the following:
3.1 Lfghting shall be inspected, daily. Damaged
lighting shall be’repaired or replaced within 48 hours of discovery
by or notice to Developer. Developer shall pay for all electricity
for lighting.
3.2 ’ Drainage must be maintained at all times. Downspout
outlets, lateral lines and special catch basins shall be in good
working condition at all times.Water shall not be permitted to
accumulate in public use areas.
4. RECESSED ARF~S ALONG THE LYTTON AVENUE AND WAVERLEY.
STREET RIGHTS-0F-WAY. All private areas which have been dedicated
to the City for public use must be maintained at all times so as to
promote an atmosphere that is inviting to the public.
980722 syn 0071381
2
5. LYTTON AVENUE AND WAVERLEY STREET SIDEWALKS. All
sidewalk related improvements (including wheelchair ramps), shall
be maintained in good operating condition. Specific duties shall
include, but not be limited to, the following:
5.1 Pavement shall be inspected, weekly. Amy and all
damaged and defective pavements shall be repaired or replaced
within five working days of the occurrence or notice of such damage
or defect.
5.2 Any and all forms of drainage shall be constructed,
inspected, maintained, and repaired at all times. Storm drain
lateral lines and outlets shall be in good operating condition at
all times. Water and any other liquids shall not be permitted to
accumulate on the sidewalk.
6.STREET TREES.Street trees adjacent to the
property on. Lytton Avenue and Waverley Street (locations shown in
Exhibit "A-I"), must be kept in healthy condition, to the
satisfaction of the City Arborist. Specific duties shall include,
but not be limited to the following:
6.1 General tree care, including watering, fertilizing,
pruning, staking, removal of deadwood, replanting and replacement
as necessary.
6.2 The City Arborist shall be notified at least ten
days prior to commencement of any repair work in .the vicinity of a
street tree. Sidewalk or structural repairs, requiring the
excavation of soil within ten feet of a street tree or its roots,
shall require written approval from the City Arborist, and shall be
supervised by a certified arborist retained by the Developer. If
it is determined that a tree will not survive impacts from the
repair work, the tree shall be replaced with a like kind and size’
(at time of repair), or the largest transplantable size that will
fit the volume constraints of the sidewalk area to be planted, as
determined by the City Arborist.
6.3 Street tree removal and replacement shall require
written approval from the City Arborist. The tree well and planter
area shall be prepared, inspected and .approved by the City~Arborist
prior to installation of new trees. Tree well preparation shall
include removal of the entire root ball and all roots within two
feet of the tree well perimeter.
7. 2J~. Tree wells adjacent to the property
on Lytton Avenue and Waverley Street (as more fully diagramed in
Exhibits "A-2" and "A-3"), must be maintained in good condition.
Specific duties shall include, but not be limited to, the
following:
980722 syn 0071381
3
7.1 Removal of weeds and foreign matter.
7.2 Soil volume shall be kept at a level no lower than
four inches below the top of sidewalk or tree grate. In the event
the soil compacts, erodes or is removed for purposes of repairs,
the soil shall be replaced with the same composition mix as
specified in the conditions of approval of the PC Ordinance.
7.3 Drainage and irrigation shall be kept in working
condition to insure survival of the trees.An irrigation
subcontractor shall be retained by Developer to inspect the
drainage and irrigation during any repairs to sidewalk, curb,grates or structure. The subcontractor shalldetermine where
maintenance, repair or replacement may be required or appropriate
to clean, unclog, and repair or replace irrigation or drainage
fixtures, piping, aeration tubes, filter fabric, and the like. The
recommended actions shall be reviewed and approved in advance by
the City’s Department of Public Works personnel.
8. ~2~. All tree grates shall be maintained
in good condition. Specific duties shall include, but not be
limited to the following:
8.1 Tree grates shall remain even with ~the edge
material. In the event a grate edge or corner is raised or lowered
for any reason, it shall be promptly leveled out if the
differential settlement exceeds ~-inch.
8.2 In the event the trunk of the tree grows to the
point of touching the grate, the grate opening shall be enlargedor
replaced to accommodate further trunk expansion.
9. WAIVER AND RELEASE. Neither the City nor any of its
council members, officers, employees or agents shall be liable to
Developer, or any successor or assign of Developer, for any damage,
loss, or liability, arising in connection with the ownership,
operation, construction, or development of the Project or any
building thereon or for the performance or failure of performance
of any obligation of Developer under this Agreement, excepting
those obligations imposed solely on the City hereby. Developer
hereby waives and releases any claim or cause of action which
Developer may assert or possess against the City, its council
members, officers, employees, or agents, excepting those
obligations imposed solely on the City by this Agreement, and
excepting any claim based on the sole negligentacts or omissions
of the City, its officers, employees, or agents.
I0. INDEMNIFICATIQN. Developer shall indemnify, defend,
and hold harmless the City, its council members, officers,
employees, and agents, from and against any and all liability,
!osses, damages, claims, costs, and expenses, for injury, including
980722 syn 90713~ !
4
death, to person or damage to property, of any nature whatsoever,
arising in ~connection with or as a result of Developer’s
performance of or failure to perform its obligations under this
Agreement, or of Developer’s ownership or operation of the Project
or the building thereon. Developer’s indemnity shall not extend to
or include damages and claims based upon, or resulting from, the
negligent or criminal acts of third parties. With respect to the
specific obligations imposed upon the City by this Agreement, the
City shall hold Developer harmless from all damages caused by the
negligent acts or omissions of the City, its officers, employees,
or agents.
Ii. ,INSURANCE.
ii.i Developer, at its sole cost and expense, shall
maintain general liability and property damage insurance with a
combined single limit coverage of one million dollars ($I,000,000),
insuring against any and all liability of DeveloPer and its
authorized representatives arising out of or in connection with the
exercise of the rights and obligations of Developer under this
Agreement. All general liability insurance, and property damage
insurance coverage also shall insure performance by Developer of
the indemnity provisions of this Agreement. The City, its council
members, boards, contmissions, officers, employees, and agents shall
be named as additional insureds under such insurance, and ~the
policy or policies evidencing such insurance shall contain cross
liability endorsements.
11.2 All insurance required by this Agreement shall be
(a) issued by insurance companies authorized to do business in the
State of California reasonably acceptable to the City, (b) issued
~s primary policies, and contain an endorsement requiring the
insurer to give 30 days’ prior written notice to the City and
Developer before the effective cancellation of or change in
coverage, scope,~ or amount of any policy. Each policy, or a
certificate of the policy, together with evidence of payment of
premiums, shall~ be deposited with the City.prior to completion of
the improvements in the sidewalk area, and on renewal of the policy
or policies, not less than 20 days before the expiration of the
term of the then current policy or policies.
12. DESTRUCTION OF IMPROVEMENTS.In the event that
the improvements on the Project (but not including the building
thereon) are totally or partially destroyed from any cause thereby
rendering the sidewalk, in whole or in part, inaccessible or
unusable, Developer, shall promptly clear the sidewalk of all
garbage, trash, debris, and materials and fully reconstruct,
restore, and repair the sidewalk to the extent necessary to restore
ful! public access along the sidewalk. In the event that the
improvements on the Project referred to herein are totally or
partially destroyed, Developer shall have no obligation to repair
980722 syn 0071381
or restore such improvements, except as provided in the immediately
preceding sentence and as otherwise required by applicable law.
The destruction of the improvements on the Projectshall not
relieve Developer of its obligations required to be performed
pursuant to the terms of this Agreement.
13. DEFAULT BY DEVELQPER. The occurrence of any event
set forth below shall constitute a default of this Agreement and
shal! entitle the non-defaulting party to declare a material breach
of this Agreement.
13.1 Developer fails to perform any of its obligations
hereunder in a timely manner, including the making of timely
repairs or replacements.
13.2 Developer delays the performance of any of its
obligations which, in the opinion of the City’s Director~of Public
Works~ ("Director") or his or her designee, shall endanger persons
or property.
13.3 Developer is adjudged a bankrupt, or makes a general
assignment for the benefit of Developer’s creditors, or a receiver
is appointed for DeveloPer or Developer’s estate.
14. REMEDIES FOR DEFAULT. In the event of a default
by Developer, at its option, the City may serve written notice upon
Developer that Developer is in breach of this Agreement, and elect
to exercise any and all rights and remedies reserved to the City
under this Agreement or by law. This shall include the right of
the City, at its option, to perform any work, repairs, or
replacements, and Developer shall pay to the City the actual cost
of such work, repairs, or replacements. Any such performance by
the City shall be conducted on behalf of Developer without
releasing Developer of any liability therefor. Developer
represents and warrants that it shall pay to the City, upon demand,
any such costs and expenses, including those costs and fees set
forth in Section 21.
15. TIME OF THE ESSENCE. The parties hereto agree that
in the performance of this Agreement time is of the essence.
16. COVENANTS RUNNING WITH THE LA!~D. The terms and
conditions of this Agreement shall run with the land and shall
apply to~ and shall bind, the heirs, successors, executors,
administrators, assigns, tenants, and contractors ~of the parties.
17. RECORDATION. Upon execution of this Agreement, ~he
parties agree that the City shall cause this Agreement to be
recorded in the Office of the Recorder of the County of Santa
Clara, California.
980722 syn 0071381
18. NOTICES. .Unless otherwise specified in this
Agreement, all notice hereunder shal! be given in writing and
mailed, postage prepaid, by certified mail, addressed as follows:
To City:
Copy to:
Office of the City Clerk
City of Palo Alto
250 Hamilton Avenue
Palo Alto, CA 94301
Director of Public Works
City of Palo Alto
250 Hamilton Avenue
Palo Alto, CA 94301
To Developer:LEONARD W. ELY AND SHIRLEY R. ELY, CO-TRUSTEES
OF THE ELY TRUST UTA 1982, AS AMENDED
2161 Bryant Street
Palo Alto, CA 94301
The address of a party may be changed from time to time by written
notice given to the other party in the manner set forth herein.
Notices given in the manner set forth .herein shall be deemed
received 5 days after deposit in the mail.
19. WAIVER. The waiver of any breach or violation of
any term, covenant, provision, or condition of this Agreement, or
of any ordinance or law, shall not be deemed to be a waiver of any
other breach or violation or subsequent breach or violation of the
same or of any other term, covenant, provision, condition,
ordinance or law.
20. COSTS AND ATTORNEYS’ FEES. The prevailing party in
any action brought to enforce the covenants, terms, provisions, or
conditions of this Agreement may recover from the other party its
reasonable costs and attorneys’ fees expended in connection with
such action as may be awarded by a court of competent jurisdiction.
21. EXHIBITS. All exhibits referred to in this
Agreement or in any duly executed amendment to this Agreement are
by such reference incorporated in this Agreement and made a part
hereof.
22. SEVERABILITY. If a court of competent jurisdiction
finds or rules that any provision of this Agreement is void or
unenforceable, the other provisions of this Agreement shall remain
in effect.
980722 syn 0071381
IN WITNESS WHEREOF, the parties hereto have caused this
Maintenance Agreement to be executed in~Palo Alto, County of Santa
Clara as of the date first above written.
ATTEST:CITY OF PALO ALTO
City Clerk Mayor
APPROVED AS TO FORM:LEONARD W. ELY, CO-TRUSTEE OF
THE ELY TRUST UTA 1982, AS
Senior Asst. City Attorney
APPROVED:
Taxpayer’s I~D. No. 551 8-5823
Assistant City Manager
Director of Public Works
Director of Administrative
Services
Purchasing/Insurance Review
Attachments:EXHIBIT "A- I" :
EXHIBIT "A- 2" :
EXHIBIT "A- 3" :
980722 syn 0071381
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code § 1189)
)) ss.
)
On ~,)9~2--51, 199~ , before me, the undersigned, a
Notary Public in ~nd for said County and State, personally appeared
~~~ ~" _/ ~er.s~nall9 known to
me ’’~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 of. ~otary Public
980722 syn 0071381
\i
Areas dedicated to City for public use
390 LYTTON AVENUE, PALO ALTO, CA EXHIBIT A-1
390 LYTTON AVENUE, PALO ALTO, CA EXHIBIT A-2
390 LYTTON AVENUE, PALO ALTO, CA EXHIBIT A.3
ATTACHMENT B
4 9 9 UIqIVERS ITY AVENUE MAINTENANCE AGREEMENT
THIS MAINTENANCE AGREEMENT is entered into on
, 1997,. by and between the CITY OF PALO ALTO, a
chartered city and a municipal corporation of the State of
California ("City") and RRC, a California limited liability company
("Developer").
RECITALS :
WHEREAS, Developer (aka Roxy Rapp) is the owner of that
certain real property located in the City of Palo Alto, County of
Santa Clara, State of California, generally known and described as
499 University Avenue, Palo Alto ("Property"); and
WHEREAS, Developer must enter into a maintenance
agreement with City, whereby Developer must permanently maintain
all sidewalk-related improvements (including special paving) within
the public right-of-way located adjacent to the Property, the
general description of which are more fully diagramed in EXHIBIT "A"
- Items "IA" and "IB";
NOW, THEREFORE, in. consideration of the following
covenants, terms, and conditions, the parties hereto agree:
i. TERM. The term of this Agreement shall commence
upon its execution by the parties, and shall continue for so long
as Developer or its.successors and assigns own and operate the
Property.
2. GENERAL OBLIGATIONS Developer, at its sole cost
and expense, shall construct, maintain , and repair or cause to be
constructed, maintained, and repaired, all sidewalk related
improvements (including special paving and handicap ramps) required
to be constructed within the existing public right-of-way located
adjacent to the Property.
3. SPECIAL SIDEWALK IMPROVEMENTS. Developer, at its
sole cost and expense, shall construct, inspect, maintain, and
repair, or.cause to be constructed, inspected, maintained, and
repaired, the sidewalk improvements, in good operating condition,
as more fully set forth below.
3.1 Pavement shall be inspected, daily. Any and all
damaged and defective pavements shall be repaired or replaced
within 5 working days of the occurrence of such damage or defect.
3.2 Any and all forms of drainage shall be constructed,
inspected, maintained, and repaired at all times. Storm drain
lateral lines, and outlets shall be in good operating condition at
all times. Water and any other liquids shall not be permitted to
accumulate on the sidewalk.
1
971210 syn 0071318
4. ’WAIVER AND RELEASE. Neither City nor any of its
council members, officers, employees, or agents shall be liable to
Developer, or any successor or assign of Developer, for any damage,
loss, or liability, arising in connection with the ownership,
operation, construction, or development of the Property or any
building thereon or for the performance or failure of performance
of any obligation of Developer, under this Agreement, excepting
those obligations imposed solely on City hereby. Developer hereby
waives and releases any claim or cause of action which Developer
may assert or possess against City, its council members, officers,
employees~ or agents, excepting those obligations imposed solely on
city by this Agreement, and excepting any ~claim based on the sole
negligent acts or omissions of City, its officers, employees, or.
agents.
5. INDEMNIFICATION. Developer shall indemnify, defend,
and hold harmless, City, its council members, officers, employees,
and agents, from and against any and all liability, losses,
damages, claims, costs, and expenses, for injury or damage to
person, including death, or property, of any nature whatsoever,
arising in connection with or as a result of Developer’s performance
of or failure to perform its obligations under this Agreement, or
of Developer’s ownership or operation of the Property or the
building thereon. Developer’s~indemnity~shall not extend to or
include damages¯ and claims based upon, or resulting from, the
negligent or criminal acts of third parties. With respect to the
specific obligations imposed upon City by this Agreement, City
shall hold Developer harmless from all damages caused by the
negligent acts or omissions of City, its officers, employees, or
agents.
6. INSURANCE.
6.1 Developer, at its sole cost and expense, shall
maintain general liability and property damage insurance with a
combined single limit coverage of two million dollars ($2,000,000),
insuring against, any and all liability of Developer and its
authorized representatives arising out of or in connection with the
exercise of the rights and obligations of Developer under this
Agreement. All ~general liability insurance and property damage
insurance coverage also shall insure performance by Developer of
the indemnity provisions of this Agreement. City, its council
members, boards, commissions, officers, employees, and agents shall
be named as additional insureds under such insurance, and the
policy or policies evidencing such insurance shall contain cross
liability endorsements.
6.2 All insurance required by this Agreement shall (a)
be issued by insurance companies authorized to do business in the
State of California reasonably acceptable to City, (b) be issued as
primary policies, and contain an endorsement requiring the insurer
to give 30 days’ prior written notice to City and~Developer before
the effective cancellation of or change in coverage, scope, ~or
amount of any policy. Each policy, or a certificate of the policy,
together with evidence of payment of premiums, shall be deposited
971210 syn 0071318
2
with Cityprior to completion of the improvements in the sidewalk
area, and on renewal of the policy or policies, not less than 20
days before the expiration of the term of the then current policy
or policies.
7. DESTRUCTION OF IMPROVEMENTS ON PROPERTY. In the
event that the imprevements on the Property (but not including the
building thereon) are totally or partially destroyed from any cause
thereby rendering the sidewalk, in whole or in part, inaccessible
or unusable, Developer, shall promptly clear the sidewalk of all
garbage, trash, debris, and materials and fully reconstruct,
restore, and repair the sidewalk to the extent necessary to restore
full public access along the sidewalk. In the event that the
improvements on the Property referred to herein are totally or
partially destroyed, Developer shall have no obligation to repair
or restore such improvements, except as provided in the immediately
preceding sentence and as otherwise required by applicable law.
The destruction of the improvements on the Property shall not
relieve Developer of its obligations required to be performed
pursuant to the terms of this Agreement.
8. DEFAULT BY DEVELOPER. The occurrence of any event
set forth below shall constitute a default of this Agreement and
shall entitle the non-defaulting party to declare a material breach
of this Agreement.
8.1 Developer fails to perform any of its obligations
hereunder in a timely manner, including the making of timely
repairs or replecements.
8.2 Developer delays the performance of any of its
obligations which in the opinion of City’s Director of Public Works
("Director") or his Or her designee, shall endanger persons or
property~
8.3 Developer is adjudged a bankrupt, or makes a general
assignment for the benefit of Developer’s creditors, or a receiver
is appointed for~Developer or Developer’s estate.
9. REMEDIES FOR DEFAULT. In the event of a default
by Developer, at its option, City may serve written notice upon
Developer that Developer is in breach of this Agreement, and elect
to exercise any and all rights and remedies reserved to City under
this Agreement or by law. This shall include the right of City, at
its option, to perform any work, repairs, or replacements, and
Developer shall pay to City the actual cost of such work, repairs,
or replacements. Any such performance by City shall be conducted
on behalf of Developer.without releasing Developer of any liabil~ity
therefor. Developer represents and warrants that it shall pay to
City , upon demand, any such costs and expenses, including those
costs and fees set forth in Section 15o
i0. TIME OF THE ESSENCE. The parties hereto agree that
in the performance of this Agreement time is of the essence.
971210 syn 0071318
3
II. COVENANTS RUNNING WITH THE LAND. The terms and
conditions of this Agreement shall run .with the land and shall
apply to, and shall bind,. the heirs, successors, executors,
adm±nistrators, assigns, tenants, and contractors of the parties.
12. RECORDATION. Upon execution of this Agreement, the
parties agree that City shall cause this Agreement to be recorded
in the Office of the Recorder of the County of Santa Clara,
California.
13. NOTICES. Unless otherwise specified in this
Agreement, all notice hereunder shall be given in writing and
mailed, postage prepaid, by certified mail, addressed as follows:
To City:Office of the City Clerk
City of Palo Alto
250 Hamilton Avenue
Palo Alto, CA 94301
Copy to:Director of Public Works
City of Palo Alto
250 Hamilton Avenue
Palo Alto, CA 94301
To Developer:RRC
P.O. Box 1672
Palo Alto, CA 94302
The address of a party may be changed from time to time by written
notice given to the other party in the manner set forth herein.
Notices given in the manner set forth herein shall be deemed
received 5 days after deposit in the mail.
14. WAIVER. The waiver of any breach or violation of
any term, covenant, provision, or condition of this Agreement, or
of any ordinance or law, shall not be deemed to be a waiver of any
other breach or violation or subsequent breach or violation of the
same or of any other term, covenant, provision, condition,
ordinance or law.
15. COSTS AND ATTORNEYS’ FEES The prevailing party in
any action brought to enforce the covenants, terms, provisions, or
conditions of this Agreement may recover from the other party its
reasonable costs and attorneys’ fees expended in connection with
such action as may be awarded by a court of competent jurisdiction.
16. EXHIBITS All exhibits referred to in this
Agreement or in any duly executed amendment to this Agreement are
by such reference incorporated in this Agreement and made a part
hereof.
17. SEVERABILITYo If a court of competent jurisdiction
finds or rules that any provision of this Agreement is void or
unenforceable, the other provisions of this Agreement shall remain
in effecU.
971210 syn 0071318
4
IN WITNESS WHEREOF, the parties hereto have caused this
Maintenance Agreement to be executed in Palo Alto, County of Santa
Clara as of the date first above written.
CITY OF PALO ALTO
Mayor
ATTEST:
RRC
A California~Li~ted Liability
~~~3~Rapp, Managing Member
City Clerk
APPROVED AS TO FORM:
Senior Asst. City Attorney
APPROVED:
Assistant City Manager
Director of Public Works
EXHIBIT "A" -ITEM IA AND ITEM IB
5
971210 syn 0071318
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code § 1189)
)))
On~’~<.~h~ \-.~.~.k.~_~.~.~~,\~,~\\~ before me, the undersigned, a
np~tary p~ic "~in and ~for said County, personally appeared
(check one) [ ] ’pe~sonally known to me (D~ or proved to me on the
basis of satisfactory evidence) to be the personCs) whose names)
is/a~e subscribed to the within instrument, and acknowledged to me
that he/she/4Pney executed the same in his/ hsr-/-~heir authorized
capacity (/~) , and that by his/her-/4~heir signature ~s.) on the
instrument the person(~), or the entity upon behalf of which the
person(s) acted, executed the instrument.
my nd and official seal.
971210 syn 0071318
NOTE: TREES NOT OWNER’S RESPONSIBILITY
BY OWNER AT 4~ UNIVER.£1TY AVENUE
4~ UNIVER~,ITY AVENUE
PAI~ ALTO~ ¢-..,ALIFORNIA 0~.~0~7 ~
I
i
II
,GII3E~WALK AREA TO BE I"IAINTAINE~D
OWNER AT 4~ UNIVEI;LGITY AVENUE
4,~$ LINIVI~I’r¥ AVENIJE
I~AL, O AI.,TO, ¢.,ALIFO~NIA ~II3EWALK
o=.1o.~7 ~