Item 5 Staff Report 130 Nina Court Public Storm Drainage ImprovementMEETING DATE: 12/15/03
ITEM NO.
COUNCIL AGENDA REPORT
DATE: December 10, 2003
TO: MAYOR AND TOWN COUNCIL
FROM: DEBRA J. FIGONE, TOWN MANAGER
SUBJECT: 130 NINA COURT PUBLIC STORM DRAINAGE IMPROVEMENTS
A. AUTHORIZE PAYMENT FOR CONSTRUCTION OF STORM DRAIN
IMPROVEMENTS ON CAUSEY LANE
B. AUTHORIZE PAYMENT FOR PREPARATION OF DRAINAGE
EASEMENT DOCUMENTS
C. AUTHORIZE BUDGET ADJUSTMENT IN THE AMOUNT OF
$109,300 PAYABLE FROM STORM DRAIN FEES FUND BASIN #1
RECOMMENDATION:
1. Authorize payment for construction of storm drain improvements on Causey Lane.
2. Authorize payment for preparation of drainage easement documents.
3. Authorize budget adjustment in the amount of $109,300 in the Storm Drain Fees Basin # 1.
BACKGROUND:
On February 20, 2001, the Town Council passed Resolution 2001-18 (Attachment 1), denying an
appeal of a decision by the Planning Commission approving a request to subdivide the residential
parcel at130 Nina Court into three lots and demolish a pre-1941 single family residence on property
zoned R-1:10. Condition 18.d of Exhibit A of that resolution stated:
The developer shall evaluate the existing storm drainage system from the manhole in
Causey Lane serving Pinta Court to the 18-inch diameter storm drain line in Vista Del
Monte (hydrology node 401 to 403 in the Storm Drain Master Plan). The developer is
required to design and construct the storm drainage improvements upstream of where
the Nina Court system connects to the Causey Lane system up to a maximum of $40,000
The Town shall reimburse the developer for constructing the remaining improvements.
PREPARED BY: JOHN E. CURTIS
Director of Parks and Public Works
Reviewed by: e-Slkssistant Town Manager Attorney Clerk ,...,,Finance
Community Development Revised: 12/10/03 12:00 pm
Reformatted: 5/30/02 N:\B&E\COUNCIL REPORTS\NinaCourt.CauseySD.Draft3.wpd
PAGE 2
MAYOR AND TOWN COUNCIL
SUBJECT: 130 NINA COURT PUBLIC STORM DRAINAGE IMPROVEMENTS
December 10, 2003
The Town and developer, Dividend Homes, Inc., formalized this condition by entering into an
Agreement for Participation in the Installation of Storm Drainage Improvements on Causey Lane and
Vista Del Monte (Attachment 2) in July 2002. The parcel map was recorded August 1, 2002.
Additional background on why the Town accepted responsibility for storm drainage improvements
needed for the 130 Nina Court subdivision is provided in Attachment 5.
DISCUSSION:
The storm drain investigation and capacity analysis called for by Condition 18.d indicated that the
entire storm drain line in Causey Lane and a portion of the line in Vista Del Monte were undersized
for existing development in the area, causing neighborhood flooding on Vista Del Monte.
The developer prepared design drawings for the storm drain improvements identified by the capacity
analysis. The Vista Del Monte portion of these improvements were constructed by the Town as part
of the FY01/02 Street Resurfacing and Repair Capital Improvement Program. This portion of work
was segregated from the Causey Lane drainage improvements to insure that all trenching work
within Vista Del Monte would be completed prior to construction of the asphalt overlay. The total
cost of this work was about $47,000. The developer paid his full $40,000 contribution on July 15,
2002.
The Town met with the property owners of Causey Lane on May 15, 2003 to discuss construction
issues associated with the remaining storm drainage improvements called for in the capacity analysis.
The owners' representatives correctly indicated that the Town did not possess written easements or
rights of entry to conduct the work and asked the Town to provide a complete overlay of Causey
Lane in return for the necessary easements and rights. The original Causey Lane drainage
improvements were constructed over 30-years ago on private property. The Town has maintained
these facilities as needed without easements over more than a 30 year period. The Town could have
exercised eminent domain to gain a formal easement, however, it was ultimately less expensive to
negotiate an alternate solution.
Rather than providing the overlay of Causey Lane as requested by the owners, the Town negotiated
an agreement whereby the developer agreed to contribute an additional $10,000 to the Town for
drainage improvements, and the Town agreed to reimburse the Causey Lane owners $10,000 for the
easement and entry rights. The Town is responsible for preparation of the easement agreement
including the plat and legal description of the easement. This agreement was formalized in the First
Amendment to the Agreement for Participation in the Installation of Storm Drainage Improvements
on Causey Lane and Vista Del Monte (Attachment 3), and the Right of Entry Agreement at Causey
Lane (Attachment 4), both signed in September, 2003.
The developer recently completed construction of the balance of the storm drainage improvements
identified in the capacity analysis. The Town has reviewed and approved construction prices
contained in contracts between the developer and contractor.
PAGE 3
MAYOR AND TOWN COUNCIL
SUBJECT: 130 NINA COURT PUBLIC STORM DRAINAGE IMPROVEMENTS
December 10, 2003
The total cost for this portion of work is $106,300. This includes all construction costs, testing,
inspection, and construction staking. The plats and legal descriptions for the easement agreement,
to be prepared by a licensed land surveyor, will cost an additional $3,000.
In accordance with the amended agreement with Dividend Homes, $10,000 will be deducted from
the first invoice for storm drainage improvements. The Town will also receive an invoice for
$10,000 from the owners of Causey Lane in exchange for granting utility easements and entry rights.
The amount deducted from the Dividend invoice will be paid to the owners of Causey Lane.
The total cost of the storm drainage improvements identified by the capacity analysis is $153,300
plus $3,000 for the easement legal description and $10,000 for easement rights. The Town's total
responsibility is $116,300, of which roughly $7,000 was paid in 2002 as part of the FY01/02 Street
Resurfacing and Repair Capital Improvement Program. The Town's outstanding responsibility is
$109,300. The developer has paid $40,000 and owes an additional $10,000 which will be deducted
from their next invoice.
DESCRIPTION TOWN DEVELOPER TOTAL
Vista Del Monte SD Improvements (Paid) $7,000 $40,000 $47,000
Causey Lane SD Improvements 96,300 10,000 106,300
Causey Lane Easement Rights 10,000 0 10,000
Causey Lane Easement Legal Description 3,000 0 3,000
TOTALS $116,300 $50,000 $166,300
The Town's total responsibility to satisfy the agreements entered into as a result of Condition 18.d
of Resolution 2001-18 totals $116,300. The preliminary cost estimate in 2000 for the entire storm
drainage work was $100,000, of which the Town would have been responsible for $60,000. The
Town's actual responsibility exceeds the original estimate by $56,300. Reasons for the higher cost
can be attributed to an original underestimation of the work, inflation between the time of the
estimate and the time the work was actually performed, and the cost associated with easement
procurement that had not been originally considered. The original cost estimate was done in FY
1999-2000 and we do not have records as how the estimate was prepared. In addition to this, staff
who were handling this project a few years ago are no longer with the Town as the Parks and Public
Works Department was going through a transition from being dependent on consultants to using
Town staff. We now have much better internal control as we process development projects and track
all aspects of such projects.
Pursuant to Town Code §24.60.045, the Town may use drainage fees to reimburse the developer for
the costs of improvements that provide supplemental size or capacity for the benefit of property
outside of the subdivision. Causey Lane is located within Storm Drain Basin 1 and is located outside
of the 130 Nina Court subdivision, and thus this project is eligible to receive funding from the Storm
Drain Basin 1 account.
PAGE 4
MAYOR AND TOWN COUNCIL
SUBJECT: 130 NINA COURT PUBLIC STORM DRAINAGE IMPROVEMENTS
December 10, 2003
ENVIRONMENTAL ASSESSMENTS:
This activity is a project as defined under the California Environmental Quality Act (CEQA) but is
ministerial, therefore no further action is required under CEQA.
FISCAL IMPACT:
Sufficient funds are available as of December 10, 2003 in the Storm Drain Fees Fund for Basin 1 to
provide full funding to reimburse the developer $96,300, pay the owners at Causey Lane $10,000
in exchange for an easement and entry rights, and pay a licensed land surveyor $3,000 to prepare the
plat and legal description needed for the easement agreement. For the future, staff is evaluating the
fee schedule for storm basins as the fees were set many years ago, with no increases in the interim.
Attachments:
1. Resolution 2001-18
2. Agreement for Participation in the installation of Storm Drainage Improvements on Causey
Lane and Vista Del Monte
3. First Amendment to Agreement for Participation in the installation of Storm Drainage
Improvements on Causey Lane and Vista Del Monte
4. Right of Entry Agreement at Causey Lane
5. Supplemental Background Information on Causey Lane Drainage Improvements
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RESOLUTION 2001-18 400
RESOLUTION OF THE TOWN OF LOS GATOS DENYING AN APPEAL OF A DECISION OF THE
PLANNING COMMISSION APPROVING A REQUEST TO SUBDIVIDE A RESIDENTIAL
PARCEL INTO THREE LOTS AND TO DEMOLISH A PRE-1941 SINGLE FAMILY RESIDENCE
ON PROPERTY ZONED R-1:10.
SUBDIVISION APPLICATION: M-99-1
ARCHITECTURE AND SITE APPLICATION: S-99-40
PROPERTY LOCATION: 130 NINA COURT
PROPERTY OWNER: JERRELL WILSON, PAUL BOONE
APPLICANT: DIVIDEND HOMES, INC.
APPELLANT: McMANIS FAULKNER & MORGAN
WHEREAS:
A. This matter came before Council for public hearing on January 8, 2001 and continued to
February 5, 2001, on an appeal by McManis Faulkner & Morgan from a decision of the Planning
Commission and was regularly noticed in conformance with State and Town law.
B. Council received testimony and documentary evidence from the appellant and all interested
persons who wished to testify or submit documents. Council considered all testimony and materials
submitted, including the record of the Planning Commission proceedings and the packet of material
contained in the Council Agenda Report dated January 4, 2001, January 31, 2001 and February 2, 2001 along
with subsequent reports and materials prepared concerning this application.
C. Applicant is requesting approval (Alternative 3) to subdivide a 1.5 gross acre parcel into three
lots and to demolish a single family residence. The lots range in size from 12,540 square feet to 27,740
square feet. Access will be provided by a 20 foot wide road off Pinta Court. Private driveway access to
lot 2 via Nina Court shall be considered in the Architecture and Site review process.
D. On April 12, 2000, the Planning Commission considered and denied an application at this
Page 1 of 7
Attachment 1
site for a four lot subdivision to demolish the residence. The decisiJ f the Planning Commission was
appealed. Town Council considered the appeal on August 7, 2000 and continued the matter for further
study. Council considered five alternatives on September 18, 2000 and returned the matter to the Planning
Commission with specific direction that the Commission review Alternative 3, a standard three lot
subdivision including a public road.
E. Appellant claims that the Planning Commission erred or abused its discretion and new
information was provided that was not reasonable available at the time of the Planning Commission
decision.
F. The Planning Commission decision was correct. The findings of the Commission are, by this
reference, incorporated herein.
RESOLVED:
1. The appeal of the decision ofthe Planning Commission on Subdivision Application M-99-18
and Architecture and Site Application S-99-40 is denied. Revised Conditions of Approval, attached hereto
as Exhibit A, are hereby applied to this approval.
2. The decision constitutes a final administrative decision pursuant to Code of Civil Procedure
section 1094.6 as adopted by section 1.10.085 ofthe Town Code of the Town of Los Gatos. Any application
for judicial relief from this decision must be sought within the time limits and pursuant to the procedures
established by Code of Civil Procedure section 1094.6, or such shorter time as required by State and Federal
law.
Page 2 of 7
PASSED AND AD(iED at a regular meeting of the Townjincil of the Town of Los Gatos,
California, on the 20th day of February, 2001 by the following vote.
COUNCIL MEMBERS:
AYES: Randy Attaway, Steven Blanton, Steve Glickman, Mayor Joe Pirzynski.
NAYS: Sandy Decker
ABSENT: None
ABSTAIN: None
SIGNED: /s/ Joe Pirzynski
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
ATTEST:
Is/ Marian V. Cosgrove
CLERK OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
Page 3 of 7
S:\aty220.9.wpd
411 TOWN OF Los GATC,
AGREEMENT FOR PARTICIPATION
IN THE INSTALLATION OF
Crvic CENTER
110 E. MAIN STREET
P.O. Box 949
Los GATOS, CA 95031
OFFICE OF THE TOWN CLERK
AGR
THH
STORM DRAINAGE IMPROVEMENTS ON ORIa
CAUSEY LANE AND VISTA DEL MONTE pEC,
RESO_
This agreement is made and entered into, effective upon the last date this document is signed
by the parties hereto, by and between the TOWN OF LOS GATOS, a municipal corporation
(TOWN), and DIVIDEND HOMES, INC. (DEVELOPER), whose current address is 275 Saratoga
Avenue, Suite 105, Santa Clara, CA 95050-6664, and is made with reference to the following facts:
The DEVELOPER has sought permission from the TOWN under the provisions of the Town
Zoning Ordinance to change the use of land in the TOWN for a three lot subdivision. The land is
located at 130 Nina Court (APN: 532-13-004), Los Gatos, California. The Town Council has
granted the permission, on finding that approval of the development proposal is proper if the
obligations referred to in this agreement are met by the DEVELOPER.
THE PARTIES AGREE AS FOLLOWS:
1. The DEVELOPER shall prepare plans and specifications for the construction of storm
drainage improvements on Causey Lane and Vista del Monte, including the section through
private property (Spencer), in an existing easement.
2. The TOWN shall review and approve said plans, at no cost to the DEVELOPER.
3. The DEVELOPER'S cost for the design and construction of the storm drainage
improvements shall not exceed $40,000, as designated in the Conditions of Approval for this
project, Subdivision Application M-99-0018, approved by the Town Council on February
20, 2001 by Resolution 2001-18.
4. The cost of installing the public storm drain line from Isabelle Court to Causey Lane and the
private line from Lot 3 to Causey Lane will be at the DEVELOPER's expense.
5. Within ten (10) days of the award of the construction contract for the storm drainage
improvements, DEVELOPER will submit a copy of the signed contract to the TOWN. An
itemized cost, with unit prices, shall be included. The estimate of $75,000 was made at the
N:\B&E\ENGR-PROJECTS\Nina-130\Storm Drain Agreement.wpd
INCORPORATED AUGUST 10, 1887
Attachment 2
lap
®'
time the subdivision was approved by the Town Council, February 20, 2001 and is not a
limit on the TOWN'S liability.
6. The DEVELOPER shall provide security for Faithful Performance and Labor & Materials
in the amount of $35,000. This is the difference between the original estimate and the
$40,000 required to be paid by the DEVELOPER
7. At all times during the performance of its obligations under this agreement, the
DEVELOPER shall carry public liability and property damage insurance as shown on the
attached Exhibit A.
8. Payments to the DEVELOPER shall be per Section 9-1.01B of Part I of the Standard
Specifications of the Town of Los Gatos. "Contractor" shall mean DEVELOPER and
"Owner" shall mean TOWN. Once the value of the work preformed exceeds $40,000, the
TOWN shall begin payment to the DEVELOPER.
9. The TOWN reserves the right to add or delete from the quantities of work during the
construction of the project. Changes to the work shall be in conformance with Section 4-
1.02 of Part I of the Standard Specifications of the Town of Los Gatos. As above,
"Contractor" shall mean DEVELOPER and "Owner" shall mean TOWN. Additionally,
"Engineer" shall mean Town Engineer of the Town of Los Gatos.
10. The DEVELOPER shall complete the construction of said storm drainage improvements in
a timely manner.
11. In the event of litigation to enforce the terms of this agreement, the prevailing party shall
have its costs and reasonable attorney's fees and expenses.
12. As part of it's annual street reconstruction program, the TOWN completed the storm
drainage improvements in Vista del Monte, using plans provided by the DEVELOPER. The
cost of those improvements were $47,000. The work in Vista del Monte has been completed
and the DEVELOPER has reimbursed the TOWN. The balance of the work to be completed
in the easement within private property (Spencer) and in Causey Lane will be done at
TOWN expense.
N:\B&E\ENGR-PROJECTS\Nina-130\Storm Drain Agreement.wpd
TOWN OF LOS GATOS
ATTEST:
APPROVED AS TO FORM:
RECOMMENDED FOR APPROVAL:
R OF PARKS & PUBLIC WORKS
DEVELOPER
DIVIDEND HOMES, INC.
Richar B. Oliver, President
N:\B&E\ENGR-PROJECTS\Nina-1301Storm Drain Agreement.wpd
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CONDITIONS
130 Nina Court
a. Subdivision Application M-99-18
b. Architecture and Site Application S-99-40
Requesting approval to subdivide a residential parcel into three lots and to demolish a pre-1941 single family residence on
property zoned R-1:10.
PROPERTY OWNER: Jerrell Wilson, Paul Boone
APPLICANT: Dividend Homes, Inc.
**Conditions that apply only to the Architecture and Site.
TO THE SATISFACTION OF THE DIRECTOR OF COMMUNITY DEVELOPMENT:
(Planning Division)
1. EXPIRATION OF APPROVAL. The Architecture and Site approval and the Subdivision approval will expire two years
from the date of approval unless the approval is used before expiration.
2. ARCHITECTURE AND SITE APPROVAL FOR PARCEL 2. During the Architecture and Site approval process for
Parcel 2, consideration shall be given to provide primary access for Parcel 2 via Nina Court. On site guest parking may
be provided with access from Pinta Court.
3. LANDSCAPE PLAN APPROVAL. Any proposed landscape plans must be reviewed and approved by the Parks and
Forestry Department prior to issuance of any building permits.
4. **RECYCLING. All wood, metal, glass and aluminum materials generated from the demolished structure shall be
deposited to a company which will recycle the materials. Receipts from the company(s) accepting these materials, noting
type and weight of material, shall be submitted to the Town prior to the Town's demolition inspection.
5. NEW PARCELS. All new parcels created by the subdivision shall be subject to the Nuevo Mundo subdivision CC&R's
pursuant to the terms of those CC&R's if they are applicable.
6. PERMITS. Each of the lots shall apply for a separate Architectural and Site approval and shall be reviewed by the
Planning Commission.
(Building Division)
7. **DEMOLITION PERMIT REQUIREMENTS. Contact Bay Area air Quality Management District and complete their
process as necessary before obtaining a building permit for the demolition permit from the Town Building Department.
No demolition work shall be done without first obtaining a demolition permit from the Town.
TO THE SATISFACTION OF THE PARKS AND PUBLIC WORKS DIRECTOR:
(Engineering Division)
8. STOP SIGN. A stop sign will be installed to the satisfaction of the Parks and Public Works Department at the new
Cul-De-Sac.
9. ROADWAY. The roadway width for Nina Court shall have a maximum width of 20'. The placement of the roadway in
the right of way indicated on Exhibit L of the Development Plans shall be moved a minimum of four feet to the east so
that there is a minimum of 30 feet from the west property line to the centerline of the new roadway to achieve an
objective of a corner sight stopping distance of 158 feet.
10. RIGHT OF WAY MAINTENANCE. The Town right of way that is not paved as indicated on the tentative map shall
be maintained by the adjacent owner that is inclusive in Lot 1 and Lot 3.
11. ROADWAY. Pier and grade beam construction to be used for the design of the road foundation to the Satisfaction of
the Director of Parks and Public Works.
12. REPAIRS. Developer shall repair all existing pavement in the right of way, storm drains, and sanitary sewer that is
damaged or removed during construction.
13. ADVANCED WARNING SIGN. A CalTrans standard W 10 advanced warning sign indicating that there is a side road
ahead shall be installed to the satisfaction of the Parks and Public Works Department on Pinta Court.
14. GRADING PERMIT. A grading permit is required for grading and erosions control on the individual lots. A separate
application for a grading permit (with grading plans) shall be made to the Engineering Division of the Public Works
Department. The grading plans shall include final grading, drainage retaining wall location, driveway, utilities and
interim erosion control. Unless specifically allowed by the Director of Parks and Public Works, the grading permit will
be issued concurrently wie building permit.
15. SOILS REPORT. One copy of the soils and geologic report shall be submitted with the grading permit and public
improvement applications The soils report shall include specific criteria and standards governing site grading, drainage,
pavement design, retaining wall design and erosion control. The reports shall be signed and "wet stamped" by the
engineer or geologist, in conformance with Section 6735 of the California Business and Professions Code.
16. PARCEL MAP. A parcel map shall be recorded. Two copies of the parcel map shall be submitted to the Engineering
Division of the Public Works Department for review and approval. Submittal shall include closure calculations, title
reports and appropriate fee. The map shall be recorded before any permits are issued.
17. DEDICATIONS. The following shall be dedicated on the parcel map. The dedication shall be recorded before any
permits are issued.
a. New Street. A 40-foot street right-of-way with a 20-foot radius at the intersection with Pinta Court
and a 36-foot radius cul-de-sac.
b. Public Service Easement (PSE). Five (5) feet wide, next to the easterly side New Street right-of-way
and ten (10) feet wide adjacent to Pinta Court.
c. Ingress -egress, storm drainage and sanitary sewer easements, as required.
18. PUBLIC IMPROVEMENTS. The following improvements shall be installed by the developer. Plans for those
improvements shall be prepared by a California registered civil engineer, reviewed and approved by the Town, and
guaranteed by contract, Faithful Performance Security and Labor & Materials Security before the issuance of a building
permit or the recordation of a map. The improvements must be completed and accepted by the Town before a Certificate
of Occupancy for any new building can be issued.
a. New Court. New street (20 feet wide from face of curb to face of curb), 32 foot radius cul-de-sac,
vertical curb and gutter, street lights, landscaping, retaining wall, signing, striping, storm drainage and sanitary sewers,
as required.
b. Pinta Court. Tie-in paving, street light, landscaping, signing, striping, storm drainage and sanitary
sewers, as required. The developer shall install a 15 mph traffic advisory sign for westbound traffic.
c. Causey Lane. Pavement repairs, storm drainage and sanitary sewers, as required.
d. Storm Drainage Improvements. The developer shall evaluate the existing storm drainage system from
the manhole in Causey Lane serving Pinta Court to the 18 inch diameter storm drain line in Vista del Monte (Hydrology
Node 401 to 403 in Storm Drain Master Plan). The developer is required to design and construct the storm drainage
improvements upstream of where the Nina Court system connects to the Causey Lane system up to a maximum of
$40,000. Town shall reimburse the developer for constructing the remaining improvements.
19. INSURANCE. One million dollars ($1,000,000) of liability insurance holding the Town harmless shall be provided
in a format acceptable to the Town Attorney before recordation of the map.
20. LANDSCAPE MAINTENANCE AGREEMENT. A landscape maintenance agreement shall be entered into between
the Town and the owners of the new lots, to maintain the landscaping and retaining wall in the rights -of -way. The
agreement shall run in perpetuity.
21. STORM DRAINAGE FEES. The developer's storm drainage fees, based on acreage and collected as part of the
subdivision improvements, and based on impervious area and collected with the building permit, shall be waived as part
of the developer's cost of constructing the storm drainage improvements.
22. TRAFFIC IMPACT MITIGATION FEE (RESIDENTIAL). The developer shall pay a proportional the project's share
of transportation improvements needed to serve cumulative development within the Town of Los Gatos. The fee amount
will be based upon the Town Council resolution in effect at the time the request of Certificate of Occupancy is made.
The fee shall be paid before issuance of the Certificate of Occupancy. The traffic impact mitigation fee for this project
using the current fee schedule is $5,730 per detached single family house. The final fee shall be calculated from the final
plans using the rate schedule in effect at the time of the request for a Certificate of Occupancy. The credit for the existing
house to be demolished shall be given to Parcel 3.
23. GENERAL. All public improvements shall be made according to the latest adopted Town Standard Drawings and the
Town Standard Specifications. All work shall conform to the applicable Town ordinances. The adjacent public
right-of-way shall be kept clear of all job related dirt and debris at the end of the day. Dirt and debris shall not be washed
into storm drainage facilities. The storing of goods and materials on the sidewalk and/or the street will not be allowed
unless a special permit is issued. The developer's representative in charge shall be at the job site during all working
hours. Failure to maintain the public right-of-way according to this condition may result in the Town performing the
required maintenance at the developer's expense.
24. ENCROACHMENT PERMIT. All work in the public right-of-way will require a Construction Encroachment Permit.
All work over $5,000 will require construction security.
25. PUBLIC WORKS INSPECTIONS. The developer or his representative shall notify the Engineering Inspector at least
twenty-four (24) hours before starting an work pertaining to on -site drainage facilities, grading or paving, and all work
in the Town's right-of-way. Failure to do so will result in rejection ow work that went on without inspection.
26. SURVEYING CONTROLS. Horizontal and vertical controls shall be set and certified by a licensed surveyor or
registered civil engineer qualified to practice land surveying, for the following items:
a. Retaimna11--top of wall elevations and locations
b. Toe and top of cut and fill slopes
c. Top of curb
27. EROSION CONTROL. Interim and final erosion control plans shall be prepared and submitted to the Engineering
Development Division of the Public Works Department. Grading activities shall be limited to the period of least rainfall
(April 15 to October 1). A maximum of two weeks is allowed between clearing of an area and stabilizing/building on
an area if grading is allowed to go on during the rainy season. In addition, straw bales and plastic sheeting shall be stored
on -site for emergency control, if needed. Install filter berms, check dams, retention basins, silt fences and straw bale
dikes as needed on the project site, to protect down stream water quality during winter months.
28. NONPOINT SOURCE POLLUTION PREVENTION. On -site drainage systems shall include a filtration device in the
catch basins or a grease and oil separator shall be installed.
29. UTILITIES. The developer shall install all utility services, including telephone, electric power and all other
communications lines underground, as required by Town Code °27.50.015(b). Cable television capability shall be
provided to all new lots.
30. RESTORATION OF PUBLIC IMPROVEMENTS. The developer shall repair or replace all existing improvements not
designated for removal that are damaged or removed because of developer's operations. Improvements such as, but not
limited to: curbs, gutters, sidewalks, driveways, signs, pavements, raised pavement markers, thermoplastic pavement
markings, etc. shall be repaired and replaced to a condition equal to or better than the original condition. Existing
improvement to be repaired or replaced shall be at the direction of the Engineering Construction Inspector, and shall
comply with all Title 24 Disabled Access provisions. Developer shall request a walk-through with the Engineering
Construction Inspector before the start of construction to verify existing conditions.
31. DRIVEWAY APPROACH. The developer shall install four (3) Town standard residential driveway approaches. The
new driveway approaches shall be constructed per Town Standard Detail.
32. AS -BUILT PLANS. After completion of the construction of all work in the public right-of-way or public easements,
the original plans shall have all changes (change orders and field changes) clearly marked. The "as -built" plans shall
again be signed and "wet -stamped" by the civil engineer who prepared the plans, attesting to the changes. The original
"as -built" plans shall be review and approved the Engineering Construction Inspector. A Mylar of the approved
"as -built" plans shall be provided to the Town before the Faithful Performance Security is released.
33. SANITARY SEWER. Sanitary sewers are televised by West Valley Sanitation District and approved by the Town of
Los Gatos before they are used. Install a sanitary sewer lateral clean -out at the property line of each lot.
34. TANK ABATEMENT. The existing underground storage tank shall be abandoned and any required remediation
preformed to the satisfaction of the Santa Clara Valley Water District and/or the Central Fire Protection District of Santa
Clara County. Abandonment shall be in conformance will all State and local requirements.
(Parks and Forestry Division)
35. GENERAL. All existing and newly planted trees shown on the plan are specific subjects of approval of this plan and
must remain on site.
36. TREE PROTECTION. Require tree protection fencing to be placed at the dripline of existing trees to be saved in the
area of construction. Fencing shall be four feet high chain link attached to steel poles driven two feet into the ground
when at the dripline of the tree. If the fence has to be within eight feet of the trunk of the tree a fence base may be used,
as in a typical chain link fence that is rented.
TO THE SATISFACTION OF THE SANTA CLARA COUNTY FIRE PROTECTION DISTRICT:
37. Fire Apparatus (Engine) Access Roads Required. Provide access roadways with a paved all weather surface, a minimum
unobstructed width of 20 feet, vertical clearance of 13 feet 6 inches, minimum circulating turning radius of 36 feet
outside and 23 feet inside, and a maximum slope of 15%. Installations shall conform with Fire Department Standard
Details and Specification sheet A-1.
38. FIRE APPARATUS (ENGINE) ROADWAY TURN -AROUND REQUIRED. The developer/owner shall provide an
approved fire department engine roadway turnaround with a minimum radius of 36 feet outside and 23 feet inside.
Installations shall conform with Fire Department Standard Details and Specifications A-1. Cul-De-Sac Diameters shall
be no less than 72 feet or as directed by the Town of Los Gatos.
39. TIMING OF REQUIRED ROADWAY INSTALLATIONS. Required access roads, up through first lift of asphalt, shall
be inspected and accepted by the Fire Department prior to the start of construction. Bulk combustible materials shall
not be delivered to the site until installations are completed as stated above. During construction, emergency access
roads shall be maintained clear and unimpeded. Building permit issuance may be withheld until installations are
• completed.
40. APPROVED RESIDEN4 FIRE SPRINKLERS. Developer please no.r buildings located off of the roadway
in excess of 150' travel distances to the farthest portion of the house, mitigation in the form of approved residential fire
sprinklers may be required. Assessment of that condition may be identified upon subsequent submittals.
41. PARKING ALONG ROADWAYS. The required width of fire access roadways shall not be obstructed in any manner.
Parking shall not be allowed along roadways less than 28 feet in width. Parking will be allowed along one side of the
street for roadways 28-35 feet in width. For roadways equal to or greater than 26 feet parking will be allowed on both
sides of the roadway. Roadway widths shall be measured face to faces of curb. Parking spaces are based on an 8ft. wide
space.
42. FIRE LANE MARKING REQUIRED. Provide marking for all roadways within the project. Markings shall be per fire
department specifications. Installations shall also conform to Local Government Standards and Fire Department
Standard Details and Specifications A-6
s:\ary220.9.wpd
Agreement Itite2ardin2 Causey Lang
This Agreement Regarding Causey Lane ("Agreement') is made and entered
into as of the 10`h day of September between the Town of Los Gatos, a municipal
corporation ("TOWN") and Dividend Homes, mac. ("DEVELOPER").
Recitals
A. Pursuant to the Agreement for Participation in the Installation of Storm
Drainage Improvements On Causey Lane and Vista Del Monte (the "Participation
Agreement"), the parties agreed to participate in the installation and funding of certain
storm drainage improvements, upon the terms and conditions set forth in the Participation
Agreement, The Town completed the storm drainage improvements in Vista Del Monte,
and the DEVELOPER has paid to the TOWN the agreed amount of $40,000 as a
contribution toward the cost of these improvements.
B. The TOWN has been delayed in obtaining access to Causey Lane
necessary to allow DEVELOPER to install the agreed storm drainage improvements and
a sewer lateral required under the Participation Agreement. The owners of Causey Lane
have requested additional consideration prior to allowing access.
C. The TOWN has requested, and, in order to expedite access to Causey
Lane, DEVELOPER has agreed, to increase the amount of its funding of the storm
drainage and sewer lateral improvements and to provide record drawings, upon the terms
set forth in this Agreement.
Agreement
THE PARTIES AGREE TO AMEND THE AGREEMENT AS FOLLOWS:
1. Right of Entry and Easements. On or prior to September 12, 2003,
the. TOWN will enter into a Right of Entry Agreement with the owners of Causey Lane
substantially in the form of Exhibit "A" to this Agreement (the "Right of Entry
Agreement"), This Right of Entry Agreement will provide, for DEVELOPER'S benefit,
a right of access to perform and complete the storm drainage and sanitary sewer
improvement work in Causey Lane prior to the recordation of a storm drainage easement
and sanitary sewer easement between the TOWN and the owners of Causey Lane. In
entering onto the Causey Lane property to construct the improvements, DEVELOPER
will exercise good faith efforts to comply with the conditions of entry imposed under
paragraph 2 of the Right of Entry Agreement. TOWN agrees not to delay the acceptance
of the storm and sewer improvements installed by DEVELOPER pending recordation of
said easements.
2. Evidegce of Insurance/Indemnity. DEVELOPER will provide to the
owners of Causey Lane evidence of the existing commercial general liability insurance
LG — Agreement
September 10, 2003
Page 1 of 3
Attachment 3
from the general contractor and all subcontractors performing work in Causey Lane in an
amount not less than One Million Dollars ($1,000,000) combined single limit.
DEVELOPER shall indemnify, defend and hold the TOWN harmless from and against
any and all damages, claims, liabilities, demands, liens, actions, causes of action, costs
and expenses (including reasonable attorneys' fees and costs), arising under paragraph 4
of the Right of Entry Agreement to the extent resulting from the installation of the
improvements by DEVELOPER or its subcontractors, or their respective entry onto
Causey Lane.
3. Increase in DEVELOPER'S Contribution. Subject to TOWN'S
compliance with this Agreement, DEVELOPER agrees to contribute an additional Ten
Thousand Dollars ($10,000) toward the cost for the design and construction of the storrn
drainage and sewer line improvements. This amount shall be shown as a credit on the
first invoice submitted by DEVELOPER to the TOWN for reimbursement under the
Participation Agreement. TOWN acknowledges receipt of payment from DEVELOPER
in the amount of Forty Thousand Dollars ($40,000), the full amount of the contribution
required by DEVELOPER under the Participation Agreement.
4. Record Drawings. Upon completion of the work in Causey Lane,
DEVELOPER will cause its engineer to prepare and deliver to TOWN record drawings
of the utility work in Causey Lane.
5. Entire Agreement. This Agreement and the exhibits attached hereto
and incorporated herein by reference contain the entire agreement and understanding of
the parties with respect to the subject matter hereof and cannot be amended or modified
except by written agreement executed by the parties.
6. Counterparts. This Agreement may be executed in one or more
counterparts, which shall, for all purposes, be deemed an original and all such
counterparts, taken together, shall constitute one and same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as oldie
date fast set forth above,
TOWN:
TOWN OF LOS GATOS:
D Figone,
To i nager
LO — Agreement
September 10.2003
Page 2 of 3
Recommended By:
Curtis
. of Parks & Public
orks
)
1
DEVELOPER:
B
END 11. MS,
M �,�J : eth
Vi Presid
LG — Agreement
September 10, 2003 Page 3 of 3
Approved as to Form:
Orry Korb,
Town Attorney
RIGHT OF ENTRY AGREEMENT
EXHIBIT A
pie s
This RIGHT OF ENTRY AGREEMENT (the "Agreement") is made and entered into as
of this day of September, 2003, by and among the Town of Los Gatos, a
(the "Town"), Kelly M. Heil and Lyan Anne Heil,
husband and wife (collectively, the "Heils") and Harold H. Mumby and Barbara J. Mumby,
husband and wife (collectively, the "Mumbys").
RECITALS
A. The Heils are the owners of, and reside at, that certain real property located at
16670 Kennedy Road, Los Gatos, California (the "Heils' Property").
B. The Mumbys are the owners of, and reside at, that certain real property located at
16650 Kennedy Road, Los Gatos, California (the "Mumbys' Property").
C. Access to the Heils' Property and the Mumbys' Property is provided off of
Kennedy Road through a private street known as Causey Lane. The location of Causey Lane is
illustrated on the site plan attached hereto as Exhibit A and made a part hereof. The Hells and
the Mumbys each own an undivided fifty percent (50%) interest in Causey Lane,
D. The West Valley Sanitation District (the 'District") owns, and the Town
maintains, certain sanitary sewer facilities within a portion of Causey Lane. In addition, the
Town owns and maintains a storm drain line(s) in another portion of Causcy Lane. Such sanitary
sewer facilities and storm drain lines are not located within any existing recorded easements in
favor of either the District or the Town.
E. The Town has entered into a Subdivision Improvement Agreement with Dividend
Homes, Inc. ("Dividend"), the subdivider of the real property located at 130 Nina Court in Los
Gatos, pursuant to which Dividend is required to improve the storm drain system located within
or under Causey Lane and to connect new storm and sanitary sewer lines or facilities from 130
Nina Court to the storm and sanitary sewer lines and facilities located or to be located in or under
Causey Lane.
F. Subject to the terms and conditions set forth below, the Heils and Mumbys are
willing to grant the Town a right of entry to allow the Town and its agents, employees and
contractors (including, without limitation, Dividend and its contractors and subcontractors) to
enter onto Causey Lane to perform the underground utility work described in Recital E above,
G. Following completion of the utility work described in Recital E above, the Hells
[and the Mumbys) will contract with Duran & Venable, a paving contractor, or other paving
contractor reasonably acceptable to the Town, to place an asphalt overlay and related
improvements over a portion of Causey Lane as shown cross -hatched on Exhibit A attached
hereto (the "Asphalt Overlay Work"). Pursuant to the terms set forth below, the Town shall
ISU-1800184.4
090503.NEWNEV(
-1-
Aol
contribute the sum of Ten Thousand Dollars ($10,000) toward the costs to be incurred by the
Neils [and the Mumbys] of performing, or causing to be performed, the Asphalt Overlay Work
H. The Mumbys, the Heils, the District and the Town desire to enter into, and cause
to be recorded in the Official Records of Santa Clara County, definitive easement agreements
that will (i) provide for the grant of sanitary sewer and storm drain easements over a portion of
Causey Lane in favor of the Town and the District, as the case may be, and (ii) set forth the rights
and obligations of the District and the Town with respect to the ownership, maintenance and
repair of the sanitary sewer and storm drain lines and facilities to be located in Causey Lane,
NOW, THEREFORE, in consideration of the mutual promises and agreements set forth
below, and for other valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
AGREEMENT
1, Grant of Right of Entry. Commencing on September 15, 2003 (the
"Commencement Date") and ending on the earlier of (i) the date twenty-one (21) days following
the Commencement Date, as such twenty-one day period shall be extended by one day for each
day that the Town or Dividend is prevented from completing the Underground Work (as defined
below) due to the negligence or willful misconduct of the Heils or the Mumbys or due to a force
majeure event (as defined below) (provided, however, under no circumstances shall such twenty-
one day period be extended more than thirty (30) days due to force majeure events unless the
parties hereto otherwise agree in writing in their sole discretion), (ii) the date the Underground
Work defined below is completed, or caused to be completed, by the Town or its agents,
employees, contractors or subcontractors (including, without limitation, Dividend and its
contractors and subcontractors), or (iii) the date the Town breaches any of its obligations under
this Agreement and fails to cure such breach within five (5) business days following receipt of
written notice from the Hells or the Mumbys, the Town and its agents, employees, contractors
and subcontractors (including, without limitation, Dividend and its contractors and
subcontractors if so designated by the Town) shall have the non-exclusive right and license,
subject to the terms and conditions set forth in Paragraphs 2, 3 and 4 below, to enter upon Causey
Lane for the purpose of improving the existing storm drain system in Causey Lane and
connecting new storm and sanitary sewer lines and facilities from 130 Nina Court to the storm
and sanitary sewer system located or to be located under a portion of Causey Lane (collectively,
the "Underground Work"); provided that in conducting all such activities the Town complies,
and causes its agents, employees, contractors and subcontractors (including, without limitation,
Dividend and its contractors and subcontractors) to comply, with all laws, ordinances, rules and
regulations applicable to such Underground Work. The Town agrees that under no circumstances
shall the Hcils or the Mumbys bear any of the cost of performing the Underground Work,
(a) Force Majeure. The twenty-one day period referred to above shall
be extended by one day for each day that the Town (or Dividend) is delayed in completing the
Underground Work due to labor strikes, war, insurrection, adverse weather conditions not
reasonably anticipated or foreseeable, and Acts of God (each a "force majeure event"); provided,
\SLM00164.4
090503-NEtA W
-2-
however, under no circumstances shall the twenty-one day period referred to in Paragraph 1
above be extended more than thirty (30) days due to force majeure events unless the parties
hereto otherwise agree in writing in their sole discretion. Any claim for extension of the twenty-
one day period referred to above must be made in writing by the Town to the Murnbys and the
Heils not more than three (3) business days following the commencing of the force majeure
event; otherwise it shall be deerned waived.
2. Terms and Conditions of Right of Entry, The Town's right to enter the
Property and to allow Dividend and its contractors and subcontractors to enter the Property to
perform the Underground Work as provided above shall be subject to the following express
terms and conditions:
(a) The Underground Work shall be performed in accordance with those
certain plans and specifications prepared by , dated
, 2003, Sheets numbered:
(b) During the performance of the Underground Work, Causey Lane shall be
kept, or caused to be kept, by the Town and its contractors and subcontractors (including, without
limitation, Dividend and its contractors and subcontractors) in a safe and usable condition;
(c) The Town shall coordinate, and cause Dividend and its contractors and
subcontractors to coordinate, the performance of the Underground Work in such a manner as to
allow the Heils and Mumbys reasonable vehicular and pedestrian ingress and egress to and from
the Heils Property' and Mumbys' Property, respectively, and Kennedy Road. Such coordination
shall include, without limitation, contacting the Heils and the Mumbys in advance of
commencing the Underground Work and not less than once each day during the performance of
the Underground Work to determine the times of day during the immediately following day that
the Heils and Mumbys will need unimpaired vehicular and pedestrian access over Causey Lane.
At the end of each work day during the performance of the Underground Work, the Town shall
place, or cause Dividend or its general contractor or subcontractors to place, at no cost to the
Murnbys or the Heils, steel plates over the areas in which the Underground Work is being
performed and/or excavated areas shall be backfilled at the end of each work day so that the
Mumbys and the Heils will have vehicular access over such areas during non -working hours until
the Underground Work is complete;
(d) All Underground Work shall be performed not earlier than 8:00 a.m and
not later than 5:00 p.m. Pacific Time and shall be performed only on weekdays;
(e) All contactors and subcontractors performing the Underground Work and
any portion thereof shall be licensed in the State of California;
(f) In connection with the performance of the Underground Work, vehicular
and pedestrian access to and from the first driveway on the left of Causey Lane (after exiting onto
Causey Lane from Kennedy Road) shall not be impaired or interfered with;
tSLF\S00184.4
090509•NEWNEW
-3-
(g) The Town shall give the Heils and the Mumbys not less than forty-eight
(48) hours prior written or verbal notice of the date the Underground Work is to commence and
nothing stated herein shall preclude the Mumbys or the Heils from recording and posting a notice
of non -responsibility with respect to the performance of the Underground Work in or under a
portion of Causey Lane;
(h) Upon completion of the Underground Work, the Mumbys and the Heils
cha11 not have any responsibility for the maintenance or repair of the sanitary sewer system and/or
storm drain system installed or to be installed within Causey Lane as provided herein;
(i) The Underground Work shall be performed in a good and workmanlike
manner and free of liens. In the event any mechanics' or materialmens' liens are caused to be
recorded against Causey Lane (or the Mumbys' Property and/or the Heils' Property) arising out
of the performance of the Underground Work, or applicable portion thereof, the Town agrees to
discharge or bond over, or cause to be discharged or bonded over, such lien within thirty (30)
days following the date the Town receives notice of such lien(s).
3 Insurance. Prior to any entry onto the Property by the Town or Dividend and/or
any of their respective agents, employees, representatives, contractors or subcontractors, and at
all times while the Underground Work is being performed, the Town shall cause Dividend and its
general contractor with respect to the Underground Work to obtain and maintain in full force and
effect, at no cost to the Mumbys or to the Heils: (i) a policy of insurance written by one or more
responsible insurance carrier(s) which will include the Mumbys and the Heils as additional
insureds, insuring against liability for injury to persons and/or property and death of any person
or persons occurring in, on or about Causey Lane arising from the performance of the
Underground Work and Dividend's and its contractors and subcontractors' conduct in, on or
about Causey Lane. Such commercial general liability insurance shall be in an amount not less
than One Million Dollars ($1,000,000) combined single limit, and with a company reasonably
satisfactory to the Mumbys and the Heils, and (ii) all employee's compensation insurance
required under applicable Workcr's Compensation Acts. Before the Town or Dividend or its
contractors or subcontractors commence any work on Causey Lane, the Town shall cause
Dividend to furnish the Mumbys and the Heils with certificates of insurance issued by the
appropriate insurance carrier(s) demonstrating compliance with the terms of this paragraph and
providing that such insurance shall not be canceled except after thirty (30) days written notice to
the Mumbys and the Heils.
4, Indemnification. The Town shall indemnify, defend and hold the Mumbys and
the Heils and their respective successors and assigns harmless from and against any and all
damages, claims, liabilities, demands, liens, actions, causes of action, costs, and expenses
(including reasonable attorneys' fees and costs), arising from or related to the performance of the
Underground Work, or related to the commission or omission of any act in connection with such
Underground Work (including, without limitation, the failure of the Town and Dividend to pay
when due all claims for labor or materials furnished or alleged to have been furnished in
connection with the performance of the Underground Work). The preceding notwithstanding,
the provisions of this Paragraph 4 shall not be applicable to any claims to the extent arising from
4SLF1600184,4
00503-NEWNEW
-4-
or related to the negligent acts or willful misconduct of the Heils or the Mumbys. The
provisions of this Paragraph 4 shall survive the completion of the Underground Work.
5. Asphalt Overlay Work. Promptly following the completion of the
Underground Work„ thc Heils and the Mumbys shall exercise their commercially reasonable
efforts to cause Duran & Venable, a paving contractor, or such other paving contractor selected
by the Hells and the Mumbys, to perform, at the Heils' and the Mumbys' cost, the Asphalt
Overlay Work referred to above. The scope of such Asphalt Overlay Work and the materials
contemplated to be used in connection with the performance of the Asphalt Overlay Work are
more particularly described in Exhibit B attached hereto. Neither the Town, nor any officer or
employee thereof, shall be responsible for the completion of the Asphalt Overlay Work.
6. Sanitary Sewer and Storm Drain Easements. Not later than sixty (60) days
following the date of execution of this Agreement, the Town shall prepare, and submit to the
Heils and the Mumbys for their respective review and approval, a storm drain easement
agreement and a sanitary sewer easement agreement that will (i) provide for the grant of sanitary
sewer and storm drain easements by the Heils and the Mumbys in favor of the Town and the
District, as the cast may be, with respect to the sanitary sewer system and storm drain system
located or to be located within Causey Lane, and (ii) set forth the rights and obligations of the
District and the Town with respect to the ownership and maintenance and repair of the sanitary
sewer and storm drain system, lines and facilities located and to be located in Causey Lane
pursuant to the terms of Paragraph 1 and 2 above. The legal descriptions for the easements
referred to in this Paragraph 6 shall be provided by the Town and shall be reasonably acceptable
to the Heils and the Mumbys. The easement agreements referred to in this Paragraph 6 shall
provide, in part, that (x) the Town or the District, as the case may be, shall be responsible, at no
cost to the Hells or the Mumbys or their successors or assigns, for restoration of the trench
pavement surface of Causey Lane removed by any future trenching or excavation of the aforesaid
sanitary sewer or storm drain systems or facilities located or to be located in Causey Lane, and
(y) neither the Town nor the District shall be responsible for the maintenance, repair or
replacement of the pavement surface of Causey Lane following the completion of the Asphalt
Overlay Work (unless the Town or the District accepts an offer of dedication of Causey Lane,
becomes the fee owner of Causey Lane, or assumes such maintenance, repair or replacement
obligations or such maintenance, repair or replacement is necessitated or caused by the negligent
acts or omissions or willful misconduct of the Town or the District or any of their respective
agents, employees, contractors, or other representatives). Upon the Heils', the Mumbys', the
Town's and the District's written approval of the easement agreements referred to above, such
parties to such easements agreements shall execute the same and cause them to be recorded in the
Official Records of Santa Clara County,
As consideration for the Heils and Mumbys agreeing to the terms of Paragraph 6 above,
the Town agrees to pay to the Hells and Mumbys the sum of Ten Thousand Dollars ($10,000),
which $10,000 shall be paid by the Town to the Hells and thc Mumbys following the completion
of the Asphalt Overlay Work and within thirty days following receipt of a written invoice. The
invoice referred to above shall be delivered to the Town at P.O. Box 655, Los Gatos, California
95030, Attn: Accounts payable.
SLF1600184.4
0905034NEWNEW
-5-
7, Notices. Except as otherwise provided herein, all notices or other
communications required or permitted hereunder shall be in writing, and shall be (i) personally
delivered with written receipt acknowledging delivery, (ii) sent by overnight courier, or (iii) sent
by United States mail, postage prepaid. Notices shall be addressed as follows:
To Heils:
To Mumbys:
To Town:
Kelly M. Heil and Lynn Anne Heil
16670 Kennedy Road
Los Gatos, CA 95032
Harold H, Mumby and Barbara J. Mumby
16650 Kennedy Road
Los Gatos, CA 95032
John Curtis, Director
Parks and Public Works
P.O. Box 949
Los Gatos, CA 95030
Notices sent by overnight courier service shall be deemed received when received by the
recipient of such notice (as shown by the records of the delivery service or acknowledged receipt)
or, if receipt is avoided by the recipient, then shall be deemed received the day following delivery
to delivery service. Notices sent by personal service or delivery shall be deemed received on the
date such service or delivery is acknowledged by written receipt, Notices sent by United States
mail, postage prepaid shall be deemed received within three (3) days following deposit or
delivery of such notice in the United States mail.
8. Attorneys' Fees. In the event of any action by any party hereto against any other
party or parties hereto concerning the enforcement or interpretation of any provisions of this
Agreement, the prevailing party shall be entitled to recover from the nonprevailing party its costs
and expenses of enforcing its rights hereunder, including actual attorneys' fees.
9. Binding on Successors. The terms and conditions herein contained shall be
binding upon and inure to the benefit of the successors and assignees of the parties hereto.
10. Applicable Law. This Agreement shall be construed in accordance with the laws
of the State of California,
11. Partial Invalidity. If any provision of this Agreement is held by a court of
competent jurisdiction to be invalid or unenforceable, the remainder of the Agreement shall
continue in full force and effect and shall in no way be impaired or invalidated, and the parties
agree to substitute for the invalid or unenforceable provision a valid and enforceable provision
that most closely approximates the intent and economic effect of the invalid or unenforceable
provision.
1SLF1600194,4
090503•NEWNEW
-6-
12. Entire Agreement. All exhibits referred to herein are attached hereto and
incorporated herein by this reference. This Agreement and the exhibits hereto contain the entire
agreement and understanding of the parties with respect to the subject matter hereof and cannot
be amended or modified except by a written agreement, executed by each of the parties hereto.
13, Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall, for all purposes, be deemed an original and all such counterparts, taken together,
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
set forth above.
TOWN:
TOWN OM OS GATOS
By: /',�� _
Debra J. Fla"own Mani
Rccommen
John
Director Parks & Public Works
HEIL:
Kelly M. Heil
Lynn Anne Heil
MUMBY:
Approved as to Form: Harold H. Mumby
Orry P. Korb, Town Attorney Barbara J. Mumby
1SLF1600184,4
0S0503.NEWNEW
-7-
ATTEST:
Clerk of the Town of Los Gatos,
Los Gatos, California
Marian V. Cosgrove, Town Clerk
1
EXHIBIT A
SITE PLAN SHOWING CAUSEY LANE AND ASPHALT OVERLAY AREA
SHOWN CROSS -HATCHED
\S F16QO184.4
0905O3•NEWNEW
[to be attached]
-8-
1SLF1800184,1
01-082803•NEWNEW
EXHIBIT B
ASPHALT OVERLAY SCOPE OF WORK AND QUANTITIES
[to be attached]
-9-
3
RIG:-iT OF ENTRY AGREEMENT
This RIGHT OF ENTRY AGREEMENT (the "Agreement") is made and entered into as
of this day of September, 2003, by and among the Town of Los Gatos, a
(the "Town"), Kelly M. Heil and Lynn Anne 1-[eil,
husband and wife (collectively, the "l leils") and Harold H. Mumby and Barbara J. Mu nby,
husband and wife (collectively, the "Mumbys").
RECITALS
A. The Heils are the owners of, and reside at, that certain real property located at
16670 Kennedy Road, Los Cratos, California (the "Heils' Property").
B. The Mumbys are the owners of, and reside at, that certain real property located at
16650 Kennedy Road, Los Gatos, California (the "Mumbys' Property").
C. Access to the Heils' Property and the Mumbys' Property is provided off of
Kennedy Road through a pr.vate street known as Causey Lane. The location of Causey Lane is
illustrated on the site plan attache] hereto as Exhibit A and made a part hereof. The Heils and
the Mumbys each own an urdivided fifty percent (50%) interest in Causey Lane.
D. The West \alley Sanitation District (the "District") owns, and the Town
maintains, certain sanitary Sewer facilities within a portion of Causey Lane. In addition, the
Town owns and maintains a storm drain line(s) in another portion of Causey Lane. Such sanitary
sewer facilities and storm drain lines are not located within any existing recorded easements in
favor of either the District or the Town.
E. The Town has entered into a Subdivision Improvement Agreement with Dividend
Homes, Inc. (`'Dividend"), the subdivider of the real property located at 130 Nina Court in Los
Gatos, pursuant to which Dividend is required to improve the storm drain system located vvithi.n
or under Causey Lane and to connect new storm and sanitary sewer lines or facilities from 130
Nina Court to the storm and sanitary sewer lines and facilities located or to be located in or alder
Causey Lane.
F. Subject to the terns and conditions set forth below, the Heils and Mumbys are
willing to grant the Town a right of entry to allow the Town and its agents, employees anc.
contractors (including, without limitation, Dividend and its contractors and subcontractors) to
enter onto Causey Lane :o perform the inderground utility work described in Recital E above.
G. Following completion of the utility work described in Recital E above, the Heils
[and the Mumbys] will contract with Duran & Venable, a paving contractor, or other paving
contractor reasonably acceptable to the Town, to place an asphalt overlay and related
improvements over a portion of Causey Lane as shown cross -hatched on Exhibit A attached
hereto (the "Asphalt Overlay Work"). Pursuant to the terms set forth below, the Town shall
Zi51600184.4
090503-1EWNEW
-1-
Attachment 4
contribute the sum of Ten 'Thousand IDollars ($10,000) toward the costs to be incurred by the
Neils [and the Mumbys] of',erforraing, or causing to be performed, the Asphalt Overlay Work.
H. The Mumbys, the Heils, the District and the Town desire to enter into, and cause
to be recorded in the Offic=al Records of Santa Clara County, definitive easement agreements
that will (i) provide for the grant )f sanitary sewer and storm drain easements over a portion of
Causey Lane in favor of the Town and the District, as the case may be, and (ii) set forth the rights
and obligations of the Distict and the Town with respect to the ownership, maintenance and
repair of the sanitary sewer and storm drain lines and facilities to be located in Causey Lane.
NOW, THEREFORE, in consideration of the mutual promises and agreements set forth
below, and for other valu=ble consideration the receipt and sufficiency of which is he.-eby
acknowledged, the parties hereto agree as follows:
AGREEMENT
1. Grant of Right of Entry. Commencing on September 15, . 2003 (the
"Commencement Date") and endi:ig on the earlier of (i) the date twenty-one (21) days following
the Commencement Date, as such twenty-one day period shall be extended by one day for each
day that the Town or Dividend is prevented from completing the Underground Work (as defined
below) due to the negligenc: or willful misconduct of the Neils or the Mumbys or due to a force
majeure event (as defined below) ;provided, however, under no circumstances shall such twenty-
one day period be extended more than thirty (30) days due to force majeure events unless the
parties hereto otherwise agree in writing in their sole discretion), (ii) the date the Underground
Work defined below is completed, or caused to be completed, by the Town or its agents,
employees, contractors or subcontractors (including, without limitation, Dividend and its
contractors and subcontractors), or (iii ) the date the Town breaches any of its obligations under
this Agreement and fails to cure .;uch breach within five (5) business days following receipt of
written notice from the Heils or the Tvlumbys, the Town and its agents, employees, contractor.;
and subcontractors (including, without limitation, Dividend and its contractors and
subcontractors if so designated by the Town) shall have the non-exclusive right and license,
subject to the terms and conditions set forth in Paragraphs 2, 3 and 4 below, to enter upon
Causey Lane for the pirpose of i:nproving the existing storm drain system in Causey Lane and
connecting new storm and .sanitary sewer lines and facilities from 130 Nina Court to the storm
and sanitary sewer system located or to be located under a portion of Causey Lane (collectively,
the "Underground Work"); provided that in conducting all such activities the Town complies,
and causes its agents, employees, contractors and subcontractors (including, without limitation,
Dividend and its contractors and subcontractors) to comply, with all laws, ordinances, rules and
regulations applicable to such Underground Work. The Town agrees that under no circumstances
shall the Heils or the Mumbys bear any of the cost of performing the Underground Work.
(a) Force Majeare. The twenty-one day period referred to above shall
be extended by one day for each day that the Town (or Dividend) is delayed in completing the
Underground Work due to labor strikes, war, insurrection, adverse weather conditions not
reasonably anticipated or foreseeable, and Acts of God (each a "force majeure event"); provided,
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however, under no circumstancesshall the twenty-one day period referred to in Paragraph 1
above be extended more than thirty (30) days due to force majeure events unless the parties
hereto otherwise agree in writing :n their sole discretion. Any claim for extension of the twenty-
one day period referred to r bove must be made in writing by the Town to the Mumbys and the
Heils not more than three \'3) business days following the commencing of the force majeure
event; otherwise it shall be creemel waived.
2. Terms and Conditions o= Right of Entry. The Town's right to enter the
Property and to allow Dividend tnd its contractors and subcontractors to enter the Property to
perform the Underground Work as provided above shall be subject to the following express
terms and conditions:
(a) The Underground Work shall be performed in accordance with tiose
certain plans and spe:ificat ions prepared by , dated
, 2003, Sheets r_umby:red:
(b) During the perfcrmance of the Underground Work, Causey Lane shall be
kept, or caused to be kept, b y the Town and its contractors and subcontractors (including, without
limitation, Dividend and its contractors and subcontractors) in a safe and usable condition;
(c) The -.Town shall coordinate, and cause Dividend and its contractors and
subcontractors to coordinate, the performance of the Underground Work in such a manner as to
allow the Heils and Mumbys reasonable vehicular and pedestrian ingress and egress to and from
the Heils Property' and Mumbys' Property, respectively, and Kennedy Road. Such coordination
shall include, without limitation, contacting the Heils and the Mumbys in advance of
commencing the Underground Work and not less than once each day during the performance of
the Underground Work to determine the times of day during the immediately following day that
the Heils and Mumbys will need inimpaired vehicular and pedestrian access over Causey Lane.
At the end of each work day during the performance of the Underground Work, the Town shall
place, or cause Dividend or its general contractor or subcontractors to place, at no cost to the
Mumbys or the Heils, steel plates over the areas in which the Underground Work is being
performed and/or excavated areas shall be backfilled at the end of each work day so that the
Mumbys and the Heils will -rave vehicular access over such areas during non -working hours until
the Underground Work is complete;
(d) All Underground Work shall be performed not earlier than 8:00 a.m and
not later than 5:00 p.m. Pacific Time and shall be performed only on weekdays;
(e) All contactors and subcontractors performing the Underground Work and
any portion thereof shall be licensed in the State of California;
(f) In connection with the performance of the Underground Work, vehicular
and pedestrian access to and frorn the first driveway on the left of Causey Lane (after exiting
onto Causey Lane from Kernedy Road) shall not be impaired or interfered with;
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(g) The Town shall give the Heils and ..he Mumbys not Icss than forty-eight
(48) hours prior written or verbal notice of the date the Underground Work is to commence and
nothing stated herein shall preclude the Mumbys or the Heils from recording and posting a notice
of noh-responsibility with respect to the performance of the Underground Work in or under a
portion of Causey Lane;
(h) Upon completion of the Underground Work, the Mumbys and the Heils
shall not have any responsibility for the maintenance or repair of the sanitary ,ewer system
tuidlor storm drain system installed or to be installed within Causcy Lane as provided herein;
(i) The Underground Work shall be performed in a good and workmanlike
manner and free of liens. In the event any mechanics' or nnatt:rialmens' liens arc caused to be
recorded against Causey Lane (or the Mumbys' Property and/or the 'fells' Property) arising out
of the performance of the Underground Work, or applicable portion thereof, the Town agrees to
discbargc or bond over, or cause to be discharged or bonde4 over, such lien within thirty (30)
days following the date the Town receives notice of such lien(s).
3 Insurance. Prior to any entry onto the Property by the Town or Dividend and/or
any of their respective agents, employees, representatives, con tractors or subcontractors, and at
al] times while the Underground Work is being performed, the Town shall cause Dividend and its
general contractor with respect to the Underground Work to obtainand maintain in full. force and
effect, at no cost to the Mumbys or to the Heils: (i) a policy of insurance written by one or more
responsible insurance carrier(s) which will include the Murebys and the Heils as additional
insureds, insuring against Iiability for injury to persons arid/or property end death of any person
or persons occurring in, on or about Causey Lane arising from the performance of the
'Underground Work and Dividend's and its contractors and subcontractors' conduct in, on or
.3bou: Causey Lane. Such commercial general liability insurance shall be in an amount not less
than One Million Dollars ($1,000,000) combined single 'limit, and with a company reasonably
satisihctary to the Mumbys and the Heils, and (ii) all employee's compensation insurance
required under applicable Worker's Compensation Acts. Before th_ Town or Dividend or its
contractors or subcontractors commence any work on Causey LEne, the Town shall cause
Dividend to furnish the Mumbys and the Neils with certificates of insurance issued by the
appropriate insurance carrier(s) demonstrating compliance with the terms of this paragraph and
providing that such insurance shall not be canceled except after thirty (30) days written notice to
the Mumbys and the Heils.
4. Indemnification. The Town shall indemnify, defend and hold the Munahys and
tie Hells and their respective successors and assigns harmless from End against any and all
carnnnges, claims, liabilities, demands, liens, actions, causes of action, costs, and expenses
(including reasonable attorneys' fees and costs), arising from o" related to the performance of the
Underground Work, or related to the commission or omission of any act in connection with such
Underground Work (including, without limitation, the failure of the Town and Dividend to pay
when due all claims for labor or materials furnished or at egcd to have been furnished in
connection with the performance of the Underground Werk). The preceding notwithstanding,
the provisions of this Paragraph 4 shall not be applicable to any claims to the extent arising from
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or related to the negligent acts or willful misconduct cf the Heils or the Mumbys. The
provisions of this Paragraph 4 shall survive the completion of the Underground Work.
5. Asphalt Overlay Work. Promptly following the completion of the
Underground Work„ the Hells and thc Mumbys shall exercise their commercially reasonable
effort:; to cause Duran & Venable, a paving contractor, or such other paving contractor selected
by the Heils and the Mumbys, to perform, at the Heils' and the Mumbys' cost the Asphalt
Overlay Work referred to above. The scope of such Asphalt Overlay Work arid thc materials
contemplated to be used in connection with the performance of the Asphalt Overlay Work are
more particularly described in Exhibit B attached hereto. Neither the Town, nor any officer or
employee thereof, shall be responsible for the completion of the Asphalt Overlay Work.
6. Sanitary Sewer and Storm Drain Easements. Not later than sixty (60) days
following the date of execution of this Agreement, the Town shall prepare, and submit to the
Hells and the Mumbys for their respective review and approval. a storm drain easement
agreement and a sanitary sewer casement agreement that will (i'; provide for the grant of sanitary
:ewer and storm drain casements by the Heils and the Mumbys in favor of the Town and the
District, as the case may be, with respect to the sanitary sewer system and storm drain system
located or to be located within Causey Lane, and (ii) set forth the rights and obligations of the
District and the Town with respect to the ownership and maintenance and repair of the sanitary
ewer and storm drain system, lines and facilities located and to t e located in Causey Lane
pursuant to the terms of Paragraph 1 and 2 above. The legal descriptions for the easements
referred to in this Paragraph 6 shall be provided by the Town and shall be reasonably acceptable
to the Heils and the Mumbys. The easement agreements referred to in this Paragraph 6 shall
provide, in part, that (x) the Town or the District, as thc case may be, shall be responsible, at no
cost to the Heils or the Mumbys or their successors or assigns, for restoration of the trench
pavement surface of Causey Lane removed by any future trenching or excavation of the aforesaid
::iu itay sewer or storm drain systems or facilities located or to be located in Causey Lane, and
ty) neither the Town nor the District shall be responsible for tie maintenance, repair or
replacement of the pavement surface of Causey Lane following the completion of the Asphalt
Overlay Work (unless the Town or the District accepts an cff:r of dedication of Causey Lane,
Incomes the fee owner of Causey Lane, or assumes such maintenance, repair or replacement
obligations or such maintenance, repair or replacement is necessitated or caused by the negligent
acts or omissions or willful misconduct of the Town or .he f.►istricl or any of their respective
agents, employees, contractors, or other representatives). Upon the Heils', the Mumbys', the
Town's and the District's written approval of the easement agreements referred to above, such
parties to such easements agreements shall execute the same and cause them to be recorded in the
Official Records of Santa Clara County.
As consideration for the Heils and Mumbys agreeing to the terms of Paragraph 6 above,
the Town agrees to pay to the Hells and Mumbys the sum of Ten Thousand Dollars (S l 0,000),
which S10,000 shall be paid by the Town to the Heils and the Mumb3 s following the completion
of the Asphalt Overlay Work and within thirty days following receipt of a written invoice. The
:.nvoice referred to above shall be delivered to the Town at P.C. Box 655, Los Gatos, California
95030, Attn: Accounts Payable.
13LX1800181.A
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7. Notices. Except as otherwise provided herein, all notices or other
communications required cr permitted hereunder shall be in writing, and shall be (i) personally
delivered with written receipt acknowledging delivery, (ii) sent by overnight courier, or (iii) sent
by United States mail, postage prepaid. Notices shall be addressed as follows:
To Hells:
To Mumbys:
To Town:
Kelly M. Heil and Lynn Anne Heil
16670 Kennedy Road
Los Gatos, CA 95032
Harold H. Mumby and Barbara J. Mumby
16650 Kennedy Road
Los Gatos, CA 95032
John Curtis, Director
Parks and Public Works
P.O. Box 949
Los Gatos, CA 95030
Notices sent by overnight courier service shall be deemed received when received by the
recipient of such notice Os shown by the records of the delivery service or acknowledged
receipt) or, if receipt is avoided by the recipient, then shall be deemed received the day following
delivery to delivery service. Notices sent by personal service or delivery shall be deemed
received on the date such service or delivery is acknowledged by written receipt. Notices sent by
United States mail, postage: prepaid shall be deemed received within three (3) days following
deposit or delivery of such notice in the United States mail.
8. Attorneys' Fces. In the event of any action by any party hereto against any other
party or parties hereto conderning the enforcement or interpretation of any provisions of this;
Agreement, the prevailing party shall be entitled to recover from the nonprevailing party its costs
and expenses of enforcing its rights hereunder, including actual attomeys' fees.
9. Binding on Succe ssors. The terms and conditions herein contained shall be
binding upon and inure to the benefit of the successors and assignees of the parties hereto.
10. Applicable Law. This Agreement shall be construed in accordance with the .aws
of the State of California.
11. Partial Irval:dity. If any provision of this Agreement is held by a court of
competent jurisdiction to be invalid or unenforceable, the remainder of the Agreement ;hall
continue in full force and erect and shall in no way be impaired or invalidated, and the parties
agree to substitute for the invalid or unenforceable provision a valid and enforceable provision
that most closely approximates the intent and economic effect of the invalid or unenforceable
provision.
1SLF1600184.4
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12. Entire A 3reement. All exhibits referred to herein are attached hereto and
incorporated herein by tars reference. This Agreement and the exhibits hereto contain the entire
agreement and understanding of the parties with respect to the subject matter hereof and cannot
be amended or modi ied exceptby a written agreement, executed by each of the parties hereto.
13. Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall, for all perposes, be deemed an original and all such counterparts, taken together,
shall constitute one and the sane ins,Tument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
set forth above.
TOWN:
TOWN
By:
Rccomrnen
John Cector Parks & Public Works
Approved :*'• Form:
HEIL:
Kelly M. Heil
Lynn Anne Heil
Harold H. Mumby
Korb, Town A riey Barbara J. Mutnby
%0160p1 E4 4
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ATTEST:
Clerk of the Town of L os Gatos,
Los Gatos,
Marian V /C +, s e, Town Clerk
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12. Entire Agreement. All exhibits referred to herein are attached hereto and
incorporated herein by this -eference. This Agreement and the exhibits hereto contain the entire
agreement and understanding of the parties with respect to the subject matter hereof and cannot
be amended or modified except b) a written agreement, executed by each of the parties hereto.
13. Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall, for all purpcses, be deemed an original and all such counterparts, taken together,
shall constitute one and the game instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
set forth above.
TOWN:
TOWN O;f OS GATOS
BY:
Debra J. ' '. , Town anager
Recommended bra
Lit..
John C Director Parks & Public Works
Approve . = to Form:
Orry P. Korb, Town Attorney
MUMBY:
Harold H. Mumby
Barbara J. Mumby
ATTEST:
Clerk of the Tov,1; of Los Gatos,
Los Gatos, Calif sftia
M an ?! �:osg%we, Town Clerk
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EXHIBIT A
SITE PLAN SHOVING CAUSEY LANE AND ASPHALT OVERLAY AREA
SHOWN CROSS -HATCHED
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ASPHALT OVERLAY SCOPE OF WORK AND QUANTITIES
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Town Council Minutes December 15, 2003
Redevelopment Agency Los Gatos, California
PARKS COMMISSION/APPOINTMENT (00.12)
Mayor Glickman announced that one application had been received from Jim Handy for the one
vacancy on the Parks Commission. Voting was held and Mr. Handy was appointed to term ending
4/ 1 /07.
PERSONNEL BOARD/APPOINTMENT (00.12)
Mayor Glickman announced that one application had been received from Paul DeCharme for the one
vacancy on the Personnel Board. Voting was held and Mr. DeCharme was appointed to term ending
9/1/08.
TRANSPORTATION AND PARKING COMMISSION/APPOINTMENT (00.12)
Mayor Glickman announced that one application had been received from Edgar La Veque for the two
vacancies on the Transportation and Parking Commission. Voting was held and Mr. La Veque was
reappointed to term ending 1 / 1 /08.
BUSINESS COMMENDATION/TOM AND MAUREEN ALBANESE/CAMPO DI BOCCE (00.28)
Councilmember Pirzynski presented Town Commendations to both Tom and Maureen Albanese for
their work in establishing the premier Bocce Ball center in Northern California. They have supported
the community by offering a unique venue for charitable organizations to hold exciting fund raising
events and by supporting Los Gatos in its many civic functions. Tom Albanese was present to accept
the commendation on behalf of himself and Maureen, who recently passed away. He thanked the Town
for its recognition and extended his continued support to our community.
CONSENT CALENDAR
RATIFICATION OF PAYROLL/NOVEMBER 2003 (02.V)
Motion by Mrs. Decker, seconded by Mr. Pirzynski, that Council ratify the check register for payroll
of November 9, 2003 through November 22, 2003 paid on November 26, 2003 in the amount of
$596,205.69. Carried unanimously.
ACCOUNTS PAYABLE/RATIFICATION/NOVEMBER 2003 (03.V)
Motion by Mrs. Decker, seconded by Mr. Pirzynski, that Council ratify the accompanying check
registers for accounts payable invoices paid on November 21, 2003 and November 26, 2003 in the
amount of $2,196,036.13. Carried unanimously.
MINUTES OF DECEMBER 1, 2003 (04.V)
Motion by Mrs. Decker, seconded by Mr. Pirzynski, that Council approve the Minutes of December
1, 2003, Joint Town Council/Redevelopment Agency Meeting as submitted. Carried unanimously.
NINA COURT 130/PUBLIC STORM DRAINAGE IMPROVEMENTS (05.40)
Motion by Mrs. Decker, seconded by Mr. Pirzynski, that Council authorize payment for construction
of Storm Drain improvements on Causey Lane; authorize payment for preparation of drainage
easement documents; and authorize budget adjustment in the amount of $109,300 payable from Storm
Drain Fees Fund - Basin #1. Carried unanimously.
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