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1981-162-Approving Agreement With San Jose Water Works For Installation Of Water FacilitiesRESOLUTION NO. 1981 -162 RESOLUTION APPROVING AGREEMENT WITH SAN JOSE WATER 14ORKS FOR INSTALLATION OF WATER FACILITIES ( KNOWLES DRIVE ASSESSMENT DISTRICT). RESOLVED, by the Town Council of the Town of Los Gatos, County of Santa Clara, State of California, that the TOWN OF LOS that agreement entitled, "AGREEMENT FOR INSTALLATION 0 TOWN OF LOS GATOS, KNOWLES DRIVE ASSESSMENT DISTRICT ", attached hereto, and that the Mayor is authorized, and directed, to execute said agreement in the name and in OF LOS GATOS. GATOS enter into WATER FACILITIES, a copy of which is he is hereby behalf of the TOWN PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los Gatos held on the 20th day of July , 1981, by the following vote: AYES: COUNCIL MEMBERS Thomas J. Ferrito. MarLvn J. Rasmussen. Brent N. Ventura and Peter W. Siemens NOES: COUNCIL MEMBERS ABSTAIN: COUNCIL MEMBERS None ATTEST: COUNCIL MEMBERS SIGNED: Ruth Cannon 6 ERK OF THE TOWN: LOS GATOS C AGREEMENT FOR INSTALLATION OF WATER FACILITIES TOWN OF LOS GATOS - KNOWLES DRIVE ASSESSMENT DISTRICT 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 of the State of California, (hereinafter called "TOWN "), and SAN JOSE WATER WORKS, a California corporation, (hereinafter called "UTILITY "). W I T N E S S E T H: RECITALS: A. The Town Council of Town, pursuant to the provisions of the Municipal Improvement Act of 1913, adopted a Resolution on January 21, 1980, for the formation of special assessment district designated as "Knowles Drive Assessment District ", (hereinafter called the "DISTRICT "), to accomplish, among other things, the installation of a water supply service consisting of water mains, fire hydrants, valves, meters, services, connectors, and related facilities. B. The water facilities contemplated for construction and installation within the District are shown and depicted on the sketch attached hereto, marked Exhibit "A ", and by this reference made a part hereof, and include services (including service pipes, fittings, gates and housings therefor, meter boxes and hydrant connections) to be installed in accordance with the approved Plans and Specifications, and are hereinafter referred to as the "Facilities ". C. Under the special assessment district proceedings referred to above, said Facilities are to be constructed by UTILITY. D. Pursuant to the provisions of Section 10111 of the Streets and Highways Code of the State of California, title to said facilities shall vest in UTILITY after they have been completed and accepted, and the same shall constitute a part of its system and at all times thereafter be used, operated, maintained and managed by it as a part of such system. NOW, THEREFORE, for and in consideration of their mutual coven- ants and agreements, and subject to the terms and provisions herein contained, the parties hereto do hereby agree as follows: 1. Commission Approval. This Agreement is not made pursuant to UTILITY'S Main Extension Rule. This Agreement, therefore, requires specific authorization of the California Public Utilities Commission for UTILITY to carry out its terms and conditions. UTILITY shall seek to obtain such authorization. 2. TOWN'S Deposit. UTILITY has made the following preliminary determinations: a. The estimated total cost of the facilities, hereafter referred to as the "estimated cost ", is $75,810.00, of which $18,190.00 represents the value of needed adjustments of existing facilities due to improvements. b. Said $18,190.00 shall not be subject to refund hereunder. TOWN'S "advance ", subject to refund, is $57,620.00. TOWN accepts UTILITY'S preliminary determination and will within thirty (30) days of the date of this agreement, advance to UTILITY -2- $75,810.00, but retains the right to approve or reject UTILITY'S final determination of the cost of the work and the amount of work subject to refund upon final accounting as provided under Paragraph "3." below. 3. Installation of Facilities. UTILITY agrees that it will, as soon as necessary materials and labor are available and necessary Permits, franchises, licenses or other governmental authorizations have been obtained, commence and prosecute to completion, in accordance with the timetable to be established by TOWN, the work of installing the Facilities. UTILITY reserves the right to make such changes in design or materials as it may deem necessary subject to the prior approval of TOWN. Within sixty (60) days after UTILITY has ascertained its actual costs in installing the Facilities, it will provide TOWN with a statement of the same showing in reasonable detail the costs incurred for materials, labor, and other direct and indirect costs, overhead and total costs, or unit costs or contract costs, whichever are appropriate. If such actual costs as finally determined shall be greater or less than the estimated costs, the difference shall be paid by TOWN to UTILITY, or repaid by UTILITY to TOWN, as the case may be. 4. Engineering and Street Grades. TOWN agrees to set stakes on the street within the limits of the District, as shown on said Exhibit "A ", and provide UTILITY 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 shall determine the locations and depths of the mains in relation to the data furnished by TOWN. TOWN shall provide horizontal and vertical control in the field sufficient to allow UTILITY to proceed with the -3- installation of Facilities. 5. Operation of Facilities. Upon completion of the Facilities and acceptance thereof by TOTVA -, and subject to all of the terms and conditions hereof, UTILITY agrees to accept TOWN'S conveyance thereof in the form hereinafter specified, and thereafter said Facilities shall constitute a part of UTILITY'S system and at all times thereafter be used, operated, maintained and managed by UTILITY as a part of such system in accordance with UTILITY'S applicable rates and rules on file with and authorized from time to time by the California Public Utilities Commission. 6. Construction Delay. UTILITY shall not be responsible for any delay in construction of the Facilities resulting from shortage of labor or materials, strikes, labor disturbances, war, riots, weather conditions, governmental rule, regulation or order, including orders or judgments of any Court or commission, delays in obtaining necessary rights -of -way, act of God, or any cause or condition of like or unlike characteristic, which is beyond the control of UTILITY. 7. Refund. UTILITY agrees to :Hake refunds hereunder to TOWN, in cash without interest for a period not to exceed twenty (20) years from the date hereof in annual Payments made within forty -five (45) days of the anniversary of the date- of completion of installation of the Facilities. Refund shall be determined as follows: UTILITY shall determine the revenues received by it from customers, including fire Protection agencies, supplied by service pipes directly connected to the Facilities; the refund shall be twenty -two (22 %) per cent of the revenue so received. The total amount,so refunded shall not exceed TOV 'S advance subject to refund, without interest. The Facilities were designed to serve the -4- Exhibit "A" attached hereto. If in twenty (20) years from the date hereof, eighty (80 %) per cent of the area is developed and is being served from the Facilities, UTILITY shall so notify TOWN, and at that time will become obligated to pay TOWN, in cash, any balance of the advance subject to refund which may remain unrefunded at the end of said twenty (20) year period. Any such balance shall be refunded in five (5) equal and annual installments, payable beginning twenty -one (21) years from the date hereof. 8. Notices. Any notice which it is herein provided may or shall be given by either party 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 party to whom such notice is given at its following respective address: To TOWN: TOWN OF LOS GATOS Public Works Department P.O. Box 949, 110 E. Main Street Los Gatos, CA 95031 To UTILITY: SAN JOSE WATER WORKS P.O. Box 229, 374 W. Santa Clara Street San Jose, CA 95103 Either party, by notice given as hereinabove provided, may change its address to which notice shall thereafter be addressed. 9. Assignment. This Agreement shall not be assignable by oper- ation of law, or otherwise, by TOWN or UTILITY, unless the party desiring such assignment first obtains the consent thereto of the other party, and the assignee, in writing, assumes and covenants to perform all of the obligations that would be transferred by such assignment. 10. Successors and Assigns Subject to the provisions of the preceding Paragraph 10, this Agreement shall inure to the benefit of -5- and shall bind the respective successors and assigns of the parties hereto. 11. Subject to the provisions of Paragraph "3" hereof, in the event TOWN shall become entitled to a repayment or refund under the terms of this agreement and at said time a balance is due hereunder to UTILITY, by reason of the fact that actual costs of construction exceeded the estimated costs, UTILITY shall be entitled to apply any such repayment or refund to the payment of said unpaid balance. 12. Jurisdiction of Public Utilities Commission. This Agreement . shall at all times be subject to such changes or modifications by the Public Utilities Commission of the State of California as the Commission may from time to time direct in the exercise of its jurisdiction. 13. No Agreement with Developer. UTILITY agrees that, pursuant to the provisions of subsection (d) of Section 10110 of the Streets and Highways Code of the State of California to the extent that the UTILITY facilities aforesaid have been financed by special assessments, no main extension refund agreement shall be entered into with any developer. 14. Sale of Facilities to UTILITY. TOWN shall, upon completion and acceptance of the Facilities, execute and deliver to UTILITY a deed of conveyance in the form attached hereto and identified as Exhibit "B ", conveying the Facilities to UTILITY. 15. Indemnification. UTILITY agrees to indemnify and hold TOWN harmless from and against any and all damages for injury to persons or property caused by UTILITY in the construction, reconstruction, repairs, maintenance, or operation of the Facilities. Q. Dated: IL ATTEST: �74 CLERK OF THE TOWN OF GATOS Dated: (4e TOWN OF LOS GATOS By z Mayor Town. SAN JOSE WATER WORKS By 1 2 & Vice Presideft By Secretary -7- CONVEYANCE KNOW ALL MEN BY THESE PRESENTS: That the TOWN OF LOS GATOS, a municipal corporation of the State of Claifornia, for good and valuable consideration, the receipt whereof is hereby acknowledged, does hereby assign, transfer, sell, and convey to SAN JOSE WATER WORKS, a California corporation, those certain water service facilities heretofore installed and constructed for Knowles Drive Assessment District pursuant to its Resolution adopted on January 21, 1980, in the approximate locations shown on the sketch marked Exhibit "A" and made a part hereof, and composed of the facilities particularly described thereon. t Dated:,a.) ATTEST: TOWN OF LOS GATOS, a municipal corporation. By r� CLERK-OF THE TOWN OF L ATOS EXHIBIT "B" -