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201 E. Campbell Ave.RECORDING REOUESTED BY: City of Campbell WHEN RECORDED MAIL TO: City Clerk City of Campbell 70 North First Street Campbell, CA 95008-1423 Regina Alcomendras Santa Clara County - Clerk -Recorder 06/07/2023 02:09 PM Titles: 1 Pages: 14 Fees: $0.00 Taxes: 0 -Total: 0.00 1111 KAM& WK'1rM' 10UP LION 1& 11111 APN: 279-56-001 (Space Above for Recorder's Use Only) Address: 201 East Campbell Avenue, Campbell CA 95008 THIS DOCUMENT IS EXEMPT FROM RECORDING FEES PURSUANT TO GOV. CODE §27383 CITY OF CAMPBELL PARKLET GRANTAGREEMENT This Parklet Grant Agreement ("Agreement") is entered into this 117tday of A, 2023, by and between the City of Campbell ("City") and O.M. Incorporated, a Ca lfornia S Corporation ("Business"), and David M. Roos and Sandra J. Roos, Trustees of The Roos Revocable Trust as Amended and Restated December 21, 2004, as to an undivided 50% interest and Jeffrey A. Warmoth, as an unmarried man as his sole and separate property, as to an undivided 50% interest ("Property Owner"), owner of real property located at 201 East Campbell Avenue, Campbell CA 95008 (collectively referred to as "Grantees"). City and Grantees may be referred to individually as a "Party" and collectively, as the "Parties." WHEREAS, the Campbell City Council ("Council") has approved a Semi -Permanent Parklet Program for the development of Parklets within the public right-of-way within Downtown Campbell; and WHEREAS, on October 4, 2022, the Council authorized the issuance of American Rescue Plan Act (ARPA) grant funding to Downtown businesses to assist in the construction of Semi - Permanent Parklets in public right of way (the "Parklet Grant Program"). The Council approved a total amount of $400,000 for up to sixteen parklets. For all approved grants, the Council approved up to $3,000 per parklet for parklet design customizations; and WHEREAS, the City received a total of nine (9) parklet grant applications, providing for a total of forty thousand dollars ($40,000) in grant funding per applicant ("Grant Funds"); and WHEREAS, the Grantees desire to build and operate a parklet ("Parklet") pursuant to the City's Semi -Permanent Parklet Program, and where Business is the Lessee of real property adjacent to the proposed parklet, commonly known as OM Incorporated, a California S Corporation, and 1 Property Owner owns the real property located at 201 East Campbell Avenue, Campbell, California 95008, (the "Property") as depicted along with the Parklet, estimated construction costs, and contractor requirements on the attached Exhibit A, incorporated herein by this reference; and WHEREAS, pursuant to the Parklet Grant Program, the City has agreed to reimburse the Grantees up to a maximum of forty thousand dollars ($40,000) for construction -related costs to build a Parklet; NOW THEREFORE, in consideration of the mutual covenants and agreements obtained herein, the City and the Grantees do hereby agree as follows: 1. Payment Terms and Use of Funds The Grant Funds will be distributed to Grantees following completion of construction and final inspection of the Semi -Permanent Parklet. The City shall issue a check to Grantees within twenty (20) days of receipt by City of the notarized contractor's statement, proof of payment, and lien waivers as described in Section 6 below. Payment shall be based on receipts or invoices showing proof of payment for Eligible Expenses, as defined in Section 2 of this Agreement. Grantees must accept the terms of this Agreement prior to disbursement of Grant Funds. 2. Eligible Expenses Grant Funds may only be used to reimburse construction -related costs of the physical Parklet. with up to $3,000 in Grant Funds eligible to reimburse Parklet design customizations (collectively `Eligible Expenses"). Eligible Expenses include labor, materials, equipment, or other contract items necessary for the proper execution of the work as shown on the plans, design drawings, specifications, and estimates approved by the City or the Grantees' agreement with the contractor constructing the Parklet. Eligible Expenses do not include furniture, heaters or other parklet enhancements. 3. Parklet Improvements No improvement work to the Parklet shall be undertaken until the complete Parklet Permit application has been submitted to and approved by the City Engineer as provided for in Campbell Municipal Code Chapter 11.15. The Grantees shall commence and complete all such work within one hundred eighty days (180) from the date of such approval. The Grantees may request a ninety - day (90) extension provided there is a demonstrated hardship. 4. Inspections The City may periodically review the progress of the contractor's work on the Parklet. Such inspections shall not replace any required permit inspection by the Public Works Department or any other authorized City staff or building inspector. All work which is not in conformance with the approved plans, design drawings, or specifications shall be immediately remedied by the Grantees. Deficient or improper work shall be replaced by the Grantees and made to comply with the approved plans, design drawings, and specifications and the terms of this Agreement. 2 5. No Pledge This Agreement shall not be interpreted to create any pledge or any commitment by the City to make any further grants or contributions to Grantees or any other person or entity for this or any other project. 6. Reporting and Records Prior to commencing construction of the Parklet, Grantees agree to submit the "Contractor Verification Letter," attached hereto as Exhibit B, signed and dated from the contractor hired to complete construction of the Parklet. Said letter shall confirm the contractor has met the City's requirements for construction of the Parklet, including that contractor is bonded, licensed and insured; has a City of Campbell Business License; has built at least one outdoor parklet; has attended City's webinar training session on the City's the Semi -Permanent Parklet Program; has agreed to comply with the State of California's Prevailing Wage law; and has agreed to provide copies of Certified Payroll Records submitted to the State of California's Department of Industrial Relations as required by the City for approved parklet construction expenses. Grantees must deliver to the City a properly executed and notarized contractor statement showing the full cost of the work as well as each separate component amount due to the contractor and each subcontractor involved in furnishing labor, materials, or equipment necessary to complete the Parklet. In addition, the Grantees shall submit to the City proof of payment of the contract cost pursuant to the contractor's statement and final lien waivers from all contractors and subcontractors and copies of Certified Payroll records as proof Grantee's contractor has complied with state prevailing wage law as set forth in California Labor Code sections 1770 through 1785 (https://www.dir.ca.gov/public-works/prevailing-wage.html). The City shall, within twenty (20) days of receipt of the contractor's statement, proof of payment, and lien waivers, issue a check to the Grantees as reimbursement for the actual construction cost, in an amount not to exceed a total Grant amount of $40,000, The final written report is a publicly accessible document. Original receipts and invoices must be maintained by Grantees and shall be made available to the City before payment is made to reimburse these costs. Grantees agree to maintain adequate financial records consistent with generally accepted accounting practices, and shall retain such records for at least five years after the distribution of the Grand Funds. 7. Termination City may terminate this Agreement upon written notice to Grantees if Grantees or Grantees' contractor fails to complete the Parklet provided for herein in conformity with the approved plans, design drawings, and specifications, and the terms of this Agreement. Upon said written notice, this Agreement shall terminate and the financial obligation on the part of the City shall cease and become null and void. In the event of termination, Grantees shall reimburse the City all grant funds that have paid to Grantees. 8. Completion Upon completion of the Parklet pursuant to this Agreement, Grantees shall be responsible for properly maintaining the Parklet pursuant to the separate Parklet Agreement executed between the City, Business, and Property Owner. 9. No Agency Grantees are solely responsible for the results of its services, compliance with the terms of this Agreement, and for all activities supported by the grant. Nothing in this Agreement creates a partnership, agency, joint venture, employment, or any other type of relationship between the Grantees and the City. The Grantees shall not represent themselves as agents of the City for any purpose and have no authority to bind the City in any manner whatsoever. 10. No Assignment Grantees may not assign this Agreement or delegate performance of the terms of this Agreement or construction of the Parklet under the Semi -Permanent Parklet Program to any other person or entity without the prior written consent of the City. 11. Indemnity Grantees shall indemnify, defend, and hold harmless the City of Campbell, its officers, officials, agents, volunteers, employees, and attorneys from any and all claims, actions, losses, liabilities and costs (including reasonably incurred attorney's fees) arising out of or connected with, or alleged to arise out of or in any way are connected to Grantees applying for or accepting the grant, Grantees expending or applying Grant Funds, or the construction of the Parklet, except for any claims, actions, losses, liabilities and costs proximately caused by the sole negligence or willful misconduct of the City of Campbell, its officers, officials, agents, volunteers, employees, or attorneys. This provision is intended to be the dispositive of all rights of indemnity and contribution between the parties, and Grantees waive and release any and all rights to indemnity or contribution from the City of Campbell, in law or equity, arising out of, or connected with any and all claims, actions, losses, liabilities and costs (including reasonably incurred attorney's fees) for which Grantees are obligated under this paragraph to provide indemnity or defense to the City of Campbell, its officers, officials, volunteers, employees or attorneys. 12. Insurance Requirements The Grantees shall obtain and maintain for the duration of this Agreement the following insurance: (a) Commercial General Liability insurance in a minimum amount of $2,000,000 limit per occurrence and $2,000,000 aggregate limit for bodily and personal injury, property damage, including personal and advertising injury, products and completed operations. Such insurance shall be endorsed to name City and its officials, officers, employees, agents, attorneys, and volunteers as additional insureds with respect to liability arising out of work or operations performed by or on behalf of the Grantees including materials, parts, or equipment furnished in connection with such work or operations, products and completed operations, premises owned, occupied or used by the Grantees, or automobiles owned, leased, hired or borrowed by the Grantees. Grantees shall provide written notice of any cancellation to the City; (b) Worker's Compensation as required by the State of California, with Statutory Limits, 4 and Employer's Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. The Worker's Compensation policy must be endorsed with a waiver of subrogation in favor of the City, its officers, officials, employees, attorneys, agents, or volunteers for all work performed by the Grantees and Grantees' employees; (c) Grantees shall include Grantees' contractors)/subcontractor(s) as additional insured(s) under the policies or shall furnish separate certificates and endorsements for each contractor and subcontractor. Grantees shall require and verify that all contractors and subcontractors maintain insurance meeting all the requirements stated herein. Grantees shall ensure that City, its officials, officers, employees, attorneys, agents, and volunteers are named as additional insureds on insurance required from its contractor(s)/subcontractor(s); (d) Grantees and Grantees' contractor's insurance coverage will be primary and non- contributory as respects the City, its officials, officers, employees, attorneys, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, attorneys, agents, or volunteers will be excess of the Grantees and Grantees' contractor's insurance and will not contribute with it; (e) The insurance requirements must be met prior to commencing any work or activity related to the Parklet Permit. The Grantees shall present a certificate of insurance along with all necessary endorsements and Grantees' insurance coverage shall be primary. If Grantees maintain broader coverage and/or higher limits than the above minimum coverage limits, City shall be entitled to the broader coverage and/or higher limits maintained by Grantees. 13. Compliance with Law Grantees shall become familiar and comply with and cause all its subcontractors and employees, if any, to become familiar and comply with all applicable federal, state and local laws, ordinances, codes, regulations. 14. Contact and Notices All notices, reports, or other correspondences related to this Agreement shall be sent to the following Addresses: BUSINESS O.M. Incorporated, a California S Corporation Richard Weld, Director of Operations 201 East Campbell Avenue Campbell, CA 95008 (408) 569-0075 RWeld@aquicalmex.com CITY City of Campbell Leslie Parks Community Development Department 70 N. First Street Campbell, CA 95008 (408)866-2192 lesliep@campbellca.gov PROPERTY OWNER David M. Roos and Sandra J. Roos, Trustees of The Roos Revocable Trust as Amended and Restated December 21, 2004, as to an undivided 50% interest and Jeffrey A. Warmoth, as an unmarried man as his sole and separate property, as to an undivided 50% interest Jeffrey Warmoth (650) 400-6293 jeffwarmoth@gmail.com 15. Joint and Several Liability. The liability of all persons and entities obligated in any manner under this Agreement shall be joint and several. 16. Covenant Running with the Land. Grantees and City hereby declare their express intent that that the covenants, terms, conditions and restrictions of this Agreement shall run with the land and shall be binding upon the Property Owner and Property Owner's heirs, successors, transferees, trustees, executors, administrators, and assigns, having or acquiring any right, title, or interest in or to all or any part of the real property. The acceptance of any deed or other written instrument of conveyance shall constitute acceptance of the terms, conditions, and restrictions contained herein. Any successor in interest to Property Owner, including, without limitation, any purchaser, transferee, or lessee of a portion of the real property, shall be subject to all the duties and obligations imposed hereby. 17. Severability The unenforceability, invalidity, or illegality of any provision(s) of this Agreement shall not render the other provisions unenforceable, invalid, or illegal. 18. Interpretation Each party acknowledges that they have reviewed this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement. 19. Amendment This Agreement may be amended or modified only by an express written agreement signed by both parties hereto and recorded thereafter. 20. Warranty of Authority The signatories to this Agreement warrant and represent that each is authorized to execute this Agreement and that their respective signatures serve to legally obligate the Parties and their respective heirs, representatives, agents, successors, and assigns to comply with the provisions of this Agreement. 21. Counterparts The Parties may execute this Agreement in two or more counterparts, which shall, in the aggregate, be deemed an original but all of which, together, shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first herein above set forth. PROPERTY OWNER By: 62--� David M. Roos CITY OF CAMPBELL, a municipal Corporation Mari Loventhal City Manager, City of Campbell ATTEST: F1 BUSINESS O.M. Incorporated, a California S Corporation By: Signature Name: Print Name Title: Print Title 20. Warranty of Authority The signatories to this Agreement warrant and represent that each is authorized to execute this Agreement and that their respective signatures serve to legally obligate the Parties and their respective heirs, representatives, agents, successors, and assigns to comply with the provisions of this Agreement. 21. Counterparts The Parties may execute this Agreement in two or more counterparts, which shall, in the aggregate, be deemed an original but all of which, together, shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first herein above set forth. PROPERTY OWNER BUSINESS IU0 O.M. Incorporated, a California S Corporation David M. Roos ' By: Sig6tttre Sandra J. Roos Name: M (I,P-u 9bb Pritrt Title: LLGr-e I t ana #%?--, Jeffrey A. Warmoth Print Title CITY OF CAMPBELL, a municipal Corporation Brian Loventhal City Manager, City of Campbell ATTEST: Andrea Sanders, City Clerk CORPORATE RESOLUTION Action Taken by BOARD OF DIRECTORS OF ' O. M., Inc. ("Company") The Board of Directors of O. M., Inc., a Corporation (hereinafter referred to as the "Company"), acting at a meeting held on April 3, 2023, at 1079 Lincoln Ave, located in San Jose, CA, and as authorized by the By -Laws of the Company, adopts the following resolutions, as certified by the signature of the duly authorized agent of the Company, to wit: Resolved, that the Company does hereby authorize the entering into the Agreement For Private Improvements (Parklet) In The Public Right -Of -Way and the Parklet Grant Agreement with the City of Campbell ("Agreements"). Resolved Further, that the following individual(s) are hereby authorized to execute any and all documents as necessary and has signing authority in representation of the Company, in accordance with the terms of the Agreements: Mary Abbott ���� K ►J' CERTIFICATION I, Jc a. o (mG1 rcc, , the duly elected and acting Secretary of the Company, do hereby certify that the foregoing is a true and correct copy of the resolutions adopted by the Board of Directors of the Company at a lawfully authorized meeting held on the date noted above, at which a quorum of the Board was at all times present and acting, and that said resolutions have not been modified or rescinded and are at the date of this Certification in full force and effect. In WITNESS WHEREOF, the undersigned has executed this certification and affixed jcoate seal this rcday of h2r'�' I , 2023. ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. n n State of California County of ���-1:.���-��— ) On 2-Doqj before me, %� 7U!/?ILr,C1!� V �(� �%J �-� ✓ V D (insert name and title of the officer) personally appeared `� %�22 0—AA A &Zt- who proved to me on the basis ofsatisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. 90MY ANT0INETTE SALIBA Notary Public • California Santa Clara County �/ Commission k 2315490Signature is"— (Seal) Comm. Expires Dec 20, 2023 + ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California On "' before me,1Sk=, LX_U ,0, (insert name and title of the officer) J personally appeared J K,V tktk� who proved to me on the basis of sa sfactory evidence to be the persons) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. r/j LAURA ELENA CARRENO Notary Public - California Santa Barbara County Commission Y 2413514 SignatureV-40(seal) emy Comm. Expires Aug 22, 2026 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthUness, accuracy, or validity of that document. State of California County of�•�tT� ) / On 17444 2dri before me, AAA PK�,/� , (insert name and title o the officer) personally appeared D-w1, 4(• goes who proved to me on the basis of satisfactory evidence to be the person�Wwhose namefvystare subscribed to the within instrument and acknowledged to me that Q' she/they executed the same i is er/their authorized capacity{}esj, and that by&her/their signaturgWon the instrument the persoW,, or the entity upon behalf of which the persoDKacted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) MATTHEW TIED i Notary Public - California Santa Clara County Commission # 2317810 } My Camm. Expires Ian 6, 2024 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truddWness, accuracy, or validity of that document. County of 54PA uf-r& ) State of California 0n jj!!W before me, A^A"ti / acL (insert name and title of the officer) personally appeared S J . J60s who proved to me on the basis of satisfactory evidence to be the persogW whose nan within instrument and acknowledged to me that he/ e/ ey executed the same in his4 capacity( s , and that by his er&eir signature, you the instrument the persons or which the person(,$)'acted, executed the instrument. (Aare subscribed to the their authorized entity upon behalf of I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. 'A0d w - IEU ri.Jamylosar tPublic California anta Clara County Commission 0 2311110 Comm. Expires Jan 6, 2024 Signature � (Seal)