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CC Resolution No. 4304.20 ' • ~ WJML:KIJ:v 2/2•2/77 ~ RESOLUTION N0. 4304.20 • . A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING EXECUTION OF AGREEMENT FOR ' THE INSTALLATION, CONVEYANCE, MAINTENANCE AND ~ OPERATION OF A SYSTEM OF WATER SUPPLY NORTH DE ANZA BOULEVARD ASSESSMENT DISTRICT PROJECT N0. 76-14 RESOLVED, by the City Council of the City of Cupertino, California, that the City make~and enter into an Agreement for the ~ Installation, Conveyance, Maintenance and Operation of a System of Water Supply with SO~RATO-BERG PROPERTIES and CALIFORNIA WATER SERVICE COMPANY dated and in form a copy of which is hereto attached and incorporated herein by reference, and the Mayor is hereby autho- rized to execute said Agreement on behalf of the City and the City Clerk is hereby authorized to attest his signature and to affix the corporate seal of the City thereto. * * * * * * * * * PASSED.AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 7th day of March , 1977, by the following vote: Vote Members of the City Council AY ES: Jackson, Nellis, 0'Keefe, Frolich ~ NOES : None ABSENT: Meyers ABSTAIN : None ~ APPROVED: /s/ Donald A. Frolich Mayor, City o Cupertino ATTEST : Pro Tempore /s/ Wm. E. Ryder City Clerk . ~ r . AGREEMENT FOR THE ItJSTALLATION, CONVEYANCE, MAINTENANCE AND OPERAT~ON OF A SYSTEM OF WATER SUPPLY THIS AGREEt1ENT, made and entered into this day of , 1977, by and between the CITY OF CUPERTINO, a municipal corporation of the State of California, hereinafter called "City", CALIFORNIA WATER SERVZCE COMPANY, a California public utility water corporation, hereinafter called "Utility", and SOHRATO-BERG PROPERTIES, a California corpozation, hereinafter called "Owner", W I T N E S 5 E T H: WE~REAS, Owner is the owner of certain real pzoperty within the "District", situated in the City of Cupertino, County of Santa Clara, State of California, within the boundaries outlined in red as shown on a map attached hereto as Exhibit A, Which Ownez proposes to develop; and WHEREAS, the City Council of the City, adopted Resolution of Intention No. 4304 on the 2nd day of November, 1976, for the formation of a special assessment district known as North De Anza Boulevard Assessment District Project 76-14, to acquire and construct certain improvements within the boundaries of the assessment district including, among other things, a system of water supply as shown on Exhibil- B hereto, which has been approved by the Enqineer of Work of said Assessment District; and WHEREAS, under the provisions of Sections 10,109 and 10,110 of the Streets and Highways Ccde of the State of California, City is authorized to enter into an agreement vith Utility to provide for the construction by Utility of a system of water supply and to pay Utility out of the improvement fund of the Distzict; and WHEREAS, under Section 10,111, title to the improvements so installed shall vest in Utility and constitute a part of its system and shall at all times thereafter be used, operated and maintained by it as a part of such system; and wHEREAS, said water facilities consist of mains and appurtenances (here- , inafter referred to as "Facilities") requized to furnish water service to the pzopezty within the Distzict, as more particulazly shown on Exhibit B hereto; and ~4ithout Exhibits ~ i + , R' ~ WHEREAS, u~on compliance by City with the applicable requirements of the lavs of the State of Califoznia and upon the terms and conditions herein set . forth, the Utility is willing to construct the Facilities and to furnish water service in the District through and b'y means of the Facilities at the rates and in accordance with the rules of Utility now in force in its Los Altos-Suburban district or that may from time to time be lawfully established in said Los ~ Altos-Suburban district; NOW, THEREFORE, for and in consideration of the pzemises.and of the mutual covenants, agreements, terms and provisions hezein contained, it is agreed as follows, to wit: ' 1. Initial Deposit. Ten days prioz to the start of construction, City ~shall pay or cause to be paid to Utility, in lawful money of the United States from the Assessment District Construction Fund, the sum of 5155,867 (the "Estimated Cost"), representing Utility's estimated cost of installing the Facilities and connecting the same to Utility's existing mains. (a) Because of City's fire protection requirements, approximately 6150 feet of main, shown on Exhibit S, will be larger in size than the mains otherwise zequired to serve the Distzict. The increase in cost of such ovezsizing is estimated to be 560,897. The actual increase in cost shall not be subject to refund hereunder. (b) Secause of City's fire pro[ection requirements, appzoximately 1320 feet of 12-inch main west of DeAnza Blvd. will be installed that would have otherwise not been required. The cost of such additional main is estimated to be 522,867. The actual cost shall not be subject to refund hereunder. (c) The cost of five (5) private fire protection services is estimated to be $7,767. The actual cost of these fire protection services shall not be subject to refund hereunder. 2. Installation of Facilities. Utility agrees that it will, as soon as necessary materials and labor aze available, and necessary permits, fzalichises, ~ licenses or other governmental authorizations have been obtained, commence and prosecute to completion with all zeasonable diliqence the work of installing the 2. s Facilities. Utility reserves the right to make such changes in design or material as it may deem necessary. laithin sixty (60) days after Utility has ascertained ' separately its actual costs in installing the Facilities, it will provide City with a statenent of the same showinq in reasonable detail the costs incurred for matezial, labor and other direct and indirect costs, overheads and total costs, or unit costs or contract costs, whichever are appropriate. If such actual construction costs shall not have been determined within one hundred twenty (120) days after completiqn of construction work, a preliminary determination of actual costs shall be submitted, based upon the best available information at that time. If such actual costs as finally determined shall be greater or less than the Estimated Cost, the difference shall be advanced by City to Utility or repaid by Utility to City, as the case may be, and the Estimated Cost adjusted accordinqly. 3. Engineering and Street Grades. City agrees to set or cause to be set stakes on the stzeet and lot boundaries in the District and to provide Utility . or cause Utility to be provided with finished street grades and typical cross sections to enable Utility to determine a location for the mains and the depth to which they are to be laid. Utility will determine the locations and depths of the mains in relation to'the data furnished or caused to be furnished by City. Installation of the mains will not be commenced by Utility until street grades have been bzought to those established by public authority. In the event Utility incurs any cost or expense in relocating, raising or lowerinq the Facilities by reason of inaccuracy of City in performance of its obligations under this pazagraph, Utility shall give written notice to City of such actUal cost oz expense within ten (10) days after Utility has asceztained the same, and City aqrees to pay Utility promptly the amount thereof, which shall not be subject to zefund by Utility hereunder. 4. Easements. City represents that the Facilities will all be located and installed within public ways dedicated to and accepted by either City, or the County of Santa Clara. City will furnish to Utility, upon Utility's request, : certified copies of the public records of Santa Clara Company showing such ' public dedications and acceptances. If for any reason any additional easements are requized for the installation of the Facilities, City will promptly cause the same to be procured in the name of City, or in the name of~ ~ility if such easement is located on privat~ property, and vill cause evidence of such fact to 3. be furnished to Utility or will cause such easement to be conveyed to Utility, as the case may be. 5. City's Aqreenents. City agrees to use its best efforts to assist Utility to obtain any and all~permits, fzanchises or other governmental authorizations which may be requ~ired for the installation of the Facilities. 6. Operation of Facilities. Utility agrees upon completion of the Facilities and compliance by City with the terms of this agzeement, that Utility vill operate and maintain the Facilities and will provide water service to City and to customers in the District in accordance with all valid laws, regulations and ordinances and at the rates and in accordance with the rules of Utility now in force in its Los Altos-Suburban district or that may from time to time here- after lawfully be in force in said Los Altos-Suburban district. - 7. Ownership. All Facilities to be installed hereunder by Util'ity shall be and remain at all times the sole propezty of Utility. 8. Construction Delay. Utility shall not be responsible for any delay in work to be accomplished by it hereunder resultinq from any cause beyond its control, including, without limiting the generality of the foreqoing, any delay resulting from inability to obtain sufficient proper materials and supplies, labor disturbances or shortages or weather conditions or inability to obtain necessary pezmits, licenses or other governmental authorizations. In the event Utility is unable to obtain sufficient materials to meet all construction requirements necessary to provide adequate service to all its customers, it shall be entitled to allocate materials obtained by it to such construction projects as in its sole discretion it deems most important to service needs of its customers, and any delay in completion of the work to be completed by Utility hereunder resulting from any such allocation of materials by Utility shall be deemed to be a cause beyond its control and it shall not be responsible for such ~ delay_ 9. Refund. Utility agzees to make refunds to City as hereinafter set forth. City's Advance Subject to Refund shall be subject to refund hy Utility in cash, without interest, to City for a period not to exceed twenty (20) years , after the date hereof in annual payments made within forty-five (45) days of the . 4. I. , ~ anniversary of the date hereof. Refunds shall be determined as follows: Utility shall deternine the revenue received by it from bona fide customers, includinq . fire protection agencies, supplied by service pipes connected directly to the water mains to be installed h~reunder; the refund shall be 228 of the revenue so zeceived. The total amount so refunded shall not exceed City's Advance Subject to Refund. Refunds made under the provisions of this paragraph and of pazagraph 11 will be received by City as trustee for, and for distribution to, the owners of the properties in the District assessed therefor in proportion to the amounts assessed aqainst the various parcels. No main extension zefund agreement shall be entered into with any landowner or developer of any property in the Distzict with respect to the Facilities or any part thereof. 10. Utility's Right to Offset. In the event City shall become entitled to a refund under the provisions of this agreement, Utility shall have the right at such time to offset against the amount then due City hereunder the total amount of any indebtedness then due or owing to Utility under the provisions of this agreement. without in any vay'limiting the generality of the preceding sentence, Utility shall have the right'to offset against any refunds becoming due City hereunder all costs hezeafter incurred by Utility in relocating, raisinq or lowering the Facilities, or any part or parts thereof, by reason of any change in qrade of any street or stzeets in the District. ' li. Occupancy of Tract. Zf at any time within twenty (20) years from the date hereof d-~ bona fide customers are being served by the Facilities, Utility will so notify City and at that time will become obligated to pay City in cash any balance of City's Advance Subject to Refund which may remain unzefunded at the end of said twenty (20) year period. Any such balance shall be refunded by Utility to City in five (5) equal annual installments, payable beqinning twenty-one (21) years from the date hereof. As used herein, the words "bona fide customer" shall mean a customer (excluding any customer formerly served at the same location) who has qiven evidence satisfactory to Utility that service.will be reasonably permanent to the property which has been improved with a buildinq of a permanent nature and to which sezvice has commenced. The orovision of service to a real estate developer or builder (which terms shall include any individual, association oE individuals, partnership or corporation that divides • . . 5. F- 6 , - ' a pazcel of land in[o two or more portionsl during the construction oz development , peziod shall not establish him as a bona fide customer. 12. Notices. Any notice which it is.herein provided may or shall be given by eithez party hereto to the other shall be deemed to have been duly given when deposited in the United States mail, registered or certified, postage prepaid and addressed to the person to whom such notice is given at the following respective addresses: 7b City'. City Hall 10300 Torre Avenue Cupertino, California 95014 To Owner: 2775 Middlefield Road Palo Alto, California 94306 To Utility: 1720 North First Street Post Office Box 1150 • San Jose, California 951Q8 , Either party, by notice given as hereinbefore provided, may chanae the address to which notice shall thereafter be addressed to it. . ~ 13. Assignment. City may assign this agreement upon written notice to ~ Utility aftez determination of the amount of City's Advance Subject to Refund. + Any such assignment shall apply only to those refunds hereunder which become due more than thirty (30) days after the date of receipt by Utility of such i notice of assignment. Utility will not make any ref~nd payment hereunder to ~ more than one person. I I , 14. Successors and Assigns. Subject to the provisions of the preceding paragraph 13, this agzeement shall inure to the benefit of and shall bind the • respective successors and assigns of the parties hereto. 15. ,7urisdiction of Public Utilities Commission. This agreement shall . at all times be subject to such changes or modifications by the California Public ~ Utilities Commission as said Comeiission may from time to time direct in the exezcise of its jurisdiction. I ~ 16. Bonds. Utility shall post with City labor, materials and performance I bonds in accozdance with the pzovisions of Chapter 6(commencing with Section ~ 10,500 of Division 12 of said Streets and Highways Code foz all work to be ~ pezformed by Utility hereunder. 17. Effectiveness of Aqreement. This agreement shall not become effective until proceedings have been taken by City oursuant to Division 12 • ~ . . • I 6. ; ~ . ~ . • . . • of said Streets and Nighways Code and the funds are available to cazzy out all the terms hereof. City shall promptly notify Utility in writing at such time as such funds are so available. ' 18. Application of l~efunds. Utility shall have no liability to see to the application of any refunds or other sums paid by Utility to City hereunder. 19. Pazaqraph Headings. Paragraph headings in this agreement are for convenience only and are not to be construed as part of this agreement oz in any way limiting or~amplifying the provisions hezeof. ~ IN WITNESS WHEREOF, the parties hereto have executed this aqreement, in duplicate, the day and year first above written. CITY OF CUPERTINO, a municipal corporation APPROVED AS TO FORM: BY Its City Attorney ' BY Its Attest: Zts OWNER, SOBRATO-BERG PROPERTIES By By CALIFORNSA WATER SERVICE COMPANY BY Vice President By Secretary : i , 7.