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09-082 Improvement Agreement, 21871 Dolores AveAGREEMENT 21871 Dolores Avenue Parcel 2 as shown on that certain Parcel Map entitle~I "Section 143 as shown on the map of `Map of Subdivision A Monta Vista', recorded in Volume P of Maps at page 20, Santa Clara County Records" which map was filed for record on February 17, 2009 in Book 830 of Maps at pages 30 and 31. This AGREEMENT made and entered into this ~~ day of 2009, by and between the CITY OF CUPERTTNO, a municipal corporation of the State of California, hereinafter designated as CITY, and Huei-Hwans; Hung and Tracy Hsu, husband and wife, as tenants in common, hereinafter designated as DEVELOPER. WITNESSETH WHEREAS, the DEVELOPER has made application to the CITY to secure a Building Permit to construct a single family dwelling hereinafter referred to as "Project". WHEREAS, CITY hereby approves the improvement plans and specifications prepared for the Project by Westfall Engineers, Inc, dated May 2[109 entitled "Improvement Plans for 21871 and 21881 Dolores Avenue, Cupertino" a true copy of which improvement plans and specifications aze on file in the office of the City Engineer of Cupertino; and WHEREAS, the same are incorporated hereon by reference, the same as though set out in full; NOW, THEREFORE, said improvement plans and specifications shall be hereinafter called the "Plans", and the work to be done under the Plans sh<<ll be called the "Work". WHEREAS, pursuant to the provisions of this AGREEMENT, the CITY hereby established the amounts of Bonds, Fees, and Deposits as set forth in the following schedule: SCHEDULE OF BONDS, FEES, AND DEPOSITS Street Improvement Category: PART A. Faithful Performance Bond: 110-2211 PART B. Labor and Material Bond: 110-2211 PART C. Checking and Inspection Fee: 110-4538 PART D. Development Maintenance Deposit: 110-2211 PART E. Storm Drainage Fee -Basin 2 215-4073 PART F. Street Light -One-Yeaz Power Cost;: 110-4537 PART G. Map Checking Fee: 110-4539 PART H. Pazk Fee: Zone 2 280-4083 PART I. Reimbursement Fee $14,232 $14,232 $2,385 $2,000 $580.50 N/A $2,515 (paid on 02/25/08) $15,750 N/A Page 2 of 10 NOW, THEREFORE, TT IS HEREBY MLfTUALLY AGREED by and between the parties hereto as follows, TO WIT: 1. DEDICATION A. The DEVELOPER offers to dedicate the real property shown on the parcel map and made a part hereof by reference. Said dedicated property shall be free and clear of all liens or encumbrances except those, which the (:TTY shall waive in writing. The DEVELOPER agrees not to revoke said offer of dedication, and to keep said offer open until the CITY accepts offer by resolution. B. Upon execution of this AGREEri1ENT, the DEVELOPER agrees to deliver a properly executed grant deed to the CITY of the dedicated real property, and/or such other executed conveyances, or instruments necessary to convey clear title as herein required. The DEVELOPER shall provide, at the DEVELOPER'S sole cost and expense, to the City: i. A preliminary title report issued by a title insurance company relating to the property offered for dedication. ii.. A standard policy of title insurance issued by a title insurance company and insuring the CITY in the sum of N/E1 and which shall show said property free and clear of all liens or encumbrances ea;cept those as the CITY shall expressly waive in writing; said policy shall be furnished at the time of acceptance of dedication and recordation of deed. C. Upon the condition precedent that the DEVELOPER shall perform each and every covenant and condition of this AGREEME[~1T, the CITY agrees to accept said real property offered for dedication. 2. INSTALLATION OF WORK It is further agreed that: A. The DEVELOPER shall install and complete the Work within eighteen (18) months from the date of execution of this AGREEMENT, or such longer period as may be specifically authorized in writing by the City Engineer. In the event the DEVELOPER fails or refuses to complete the Work within the specified period of time, the CITY, at its sole option, shall be authorized to complete the Work in whatever manner the CITY shall decide. In the event the CITY completes the Work, the CITY may recover any and all costs incurred thereby from the DEVELOPER or the DE`-TELOPER' S surety or both. No final inspection shall be granted or street improvements shall not be accepted unless all the requirements for safety purposes are installed, such as sidewalks, handicap ramps, street lights, etc. B. The DEVELOPER shall install and complete the Work in a good and workmanlike manner in accordance with the plans as approved by the City Engineer of Cupertino. The Work shall be done in accordance with existing ordinances and resolutions of the CITY and Page 3 of 10 in accordance with all plans, specifications, and standards approved by the City Engineer. The Work shall be done in accordance with all State and County Statutes applicable hereto. The decision of the City Engineer shall be final as to whether any material or workmanship meets the plans, specifications, and standards as set forth. C. It is further agreed that the Work shall be done in accordance with the most current Standard Specifications of the Department of Public Works, California Department of Transportation, State of California, and in accordance with the specifications of the Cupertino Sanitary District where applicab]'.e. D. Wherever the words "State" or "Ca.lifornia Division of Highways" are mentioned in the State Specifications, it shall be considered as referring to the City of Cupertino; also wherever the "Director" or "Director of Public Works" is mentioned, it shall be considered as referring to the City Engineer. E. In case of conflict between the Si~ate Specifications and the specifications of the CITY, and/or the Cupertino Sanitary District, the specifications of the CITY and/or the Cupertino Sanitary District shall take precedence over and be used in lieu of such conflicting portions. 3. QUITCLAIM DEED It is further agreed that the DEVELOPER, when requested by the CITY, shall quitclaim all his/her rights and interests in, and shall giant to CITY authorization to extract water from the underground strata lying beneath said project. DEVELOPER agrees to execute a "Quitclaim Deed and Authorization" in Favor of CITY, when presented to him/her for signature. 4. ~ BONDS AND OTHER SECURITY A. Upon the execution of this AGREEMENT, the DEVELOPER shall file with the CITY a faithful performance bond to assure his/her full and faithful performance of this AGREEMENT. The penal sum of said faithful performance bond is as set forth in Part A of the SCHEDULE OF BONDS, FEES AND DEPOSITS. In the event that improvements are to -be made under this AGREEMENT, the DEVELOPER shall, in addition to said faithful performance, file with the CITY, a labor and materials bond in a penal sum as set forth in Part B of the SCHEDULE OF BONDS, FEES AND DEPOSITS. Said bonds shall be executed by a surety company authorized to transact a surety business in the State of California and have been approved by the (:ity Attorney as to form and by the City Engineer as to sufficiency. In the event that the DEVELOPER shall fail to faithfully perform the covenants and conditions of this AGREEMENT, or to make any payment, or any dedication of land, or any improvements herein required, the CITY shall call on the surety to perform this AGREEMENT or otherwise indemnifi~ the CITY for the DEVELOPER'S failure to do so. Page 4 of 10 B. In lieu of a surety bond, the DEV):iLOPER may elect to secure this AGREEMENT by depositing with the CITY: i. Cash; or, ii. A cashier's check, or a certified check payable to the order of the City of Cupertino; or, iii. A certificate of deposit, or instrument of credit meeting the requirements of Government Code Section 66499 (1'~) or (c). C. The amount of said cash, checks, certificate of deposit, or instrument of credit shall be as designated by the City Engineer, and shall be the equivalent to that which would have been required had the DEVELOPER furni~;hed the CITY with a faithful performance surety bond. In the event that the DEVELOPER shall fail to faithfully perform the covenants and conditions of this AGREEMENT, or to make any payment, or any dedication of land, or any improvements herein required, the CITY may apply the proceeds of said security thereto. D. No release of surety bond, cash deposit, check or certificate of deposit shall be made except upon approval of the City Council. Schedule for bond and insurance release for paper bonds are as follows: i. Release of 90 percent of th~~ faithful performance bond upon acceptance by City Council. ii. Release of the remaining 10 percent of the performance bond at one year from acceptance after all deficiencies have been corrected and in the absence of any claim against such bond. iii. Release of the entire labor zmd material bond at six months from acceptance after all deficiencies have been corrected and in the absence of any claim against such bond. iv. Liability insurance, provided by the DEVELOPER to hold the CITY harmless in the event of liability arising from the project, to be retired at the end of one year if all deficiencies have l,~een corrected and in the absence of any claim against such insurance. CHECKING AND INSPECTION FEE It is further agreed that the DEVELOPER shall pay any and all necessary direct expenses for inspection, checking, etc. incurred by C]'~:TY in connection with said Project, and that DEVELOPER shall have deposited with CITY, prior to execution of this AGREEMENT, the amount as set forth herein at Page 2 (Part C). Should construction cost vary materially from the estimate from which said sum is calculated, the City Engineer shall notify DEVELOPER of any additional sum due acid owing as a result thereof. Page 5 of 10 6. DEVELOPMENT MAINTENANCE DEPOSIT It is further agreed that the DEVELOPER shall pay to the CITY, prior to execution of this AGREEMENT, the amount set forth herein at Page 2 (Part D) as a development maintenance deposit. The deposit may be used at the discretion of the City to correct deficiencies and conditions caused by the DEVELOPER or his/her contractor that may arise during or after the construction of the development. The deposit shall also be used for copies of approved plans for the CITY's files. If the cost exceeds the amount deposited the DEVELOPER is required to pay actual ~~verage prior to return of original plans. Any unexpended amount will be returned to the DEVELOPER at the time all bonds are released in accordance with paragraph 4 of this agreement. 7. STORM DRAINAGE FEE It is further agreed that the DEVELOPER shall deposit with the CITY, prior to execution of this AGREEMENT, a storm drainage charge in connection with the said Project in accordance with the requirements establislyed in Resolution 4422, March 21, 1977, in the amount as set forth herein at Page 2 (Part E). 8. STREET LIGHT -ONE YEAR POWER COST It is further agreed that the DEVELOPER shall pay to the CITY, prior to execution of this AGREEMENT, the amount as set forth herein at Page 2 (Part F), which amount represents the power cost for street lights for one year. 9. MAP CHECKING FEE It is further agreed that the DEVELOPER shall deposit with CITY, prior to execution of this AGREEMENT, for office checking of fmal map and field checking of street monuments, in compliance with Section 4:1 of Ordinance No. 47 (Revised 12/04/61) of CITY, the amount as set forth herein at Page 2 (Part G). 10. THE INSTALLATION OF STREET TRE1:;S It is further agreed that the DEVELOPER shall, at such time as deemed appropriate by the City Engineer, plant street trees in conformance with the standards of the City of Cupertino. Variety of tree shall be selected from the CITY approved list. 11. PARK FEES It is further agreed that the DEVELOPER shall pay such fees and/or dedicate such land to the CITY, prior to execution of this AGREEMENT, as is required within Section 18-1.602, Park Land Dedication, Cupertino Municipal Code, and which is further stipulated herein at, Page 2 (Part IT). Fees are also in accordance with action adopted by the City Council on March 19, 1991 and Chapter 14.05 or Secti~m 18-1.602 of the Cupertino Municipal Code. Page 6 ~af 10 12. REIIVIBURSEMENT FEE It is further agreed that the DEVELOPER ;shall deposit with the CITY, prior to execution of this AGREEMENT, a reimbursement fee for the street improvements that have been installed by the City, or by another property owner. Developer shall pay the City for the cost of the land at the cost to the City, or another property owner, and shall pay a street improvement reimbursement charge for the improvements which the City or another property owner, installed on the street abutting or included in the benefited property, in an amount equal to the total improvement costs for each particulaz benefited property as set forth in a reimbursement agreement, in the amount as set forth herein at Page 2 (Part I). Payments for both land and improvements shall include simple interest in the amount of seven percent per year, to be calculated in the following manner: A. Land Cost. Interest to accrue from the date the street improvements aze accepted by the City to the date the street improvements reimbursement charge is paid, or if the land is purchased by the City for a City project, from the date of purchase to the date the charge is paid. B. Improvement Cost. Interest to ac~;.rue from the date the street improvements aze accepted by the City to the date the street improvement reimbursement chazge is paid, or if installed by the City, from the date installation commenced to the date the chazge is paid. C. Provided, however, that the interest: shall be waived if the adjoining property owner dedicates or has dedicated to the City land necessary for the street improvements, or where no such dedication is necessary. 13. MAINTENANCE OF WORK It is further agreed that the DEVELOPER shall maintain the Work until all deficiencies in the Work are corrected to conform to the Plans and the City Standards and Specifications for the Work. The DEVELOPER shall, upon written notice thereof, immediately repair or replace, without cost or obligation to the City of Cupertino, and to the entire satisfaction of said CITY, all defects and imperfections arising out of or due to faulty workmanship and/or materials appearing in said Work. 14. SANITARY DISTRICT It is further agreed that the DEVELOPER shall file with the CITY, upon execution of this AGREEMENT, a letter from the Cupertino Sanitary District stating that the DEVELOPER has submitted plans for review by the Distract and that sanitary sewers aze available to serve all lots within said Project. Page 7 of 10 15. GOVERNMENT COSTS It is further agreed that the DEVELOPER shall file with the CITY, upon execution of this AGREEMENT, substantial evidence that all provisions of Section 66493, Article 8, Chapter 4 of the Government Code, pertaining to s~~ecial assessments or bonds, have been complied with. 16. PACIFIC GAS AND ELECTRIC/ AT&T It is further agreed that the DEVELOPER shall pay to Pacific Gas and Electric Company and/or to AT&T, any and all fees required for installation of overhead and/or underground wiring circuits to all electroliers within paid property and any and all fees required for undergrounding as provided in Ordinance: No. 331 of CITY when the DEVELOPER is notified by either the City Engineer or Pacific Gas and Electric Company and/or AT&T that said fees are due and payable. 17. EASEMENTS AND RIGHT-OF-WAY It is further agreed that any easement and right-of--way necessary for completion of the Project shall be acquired by the DEVELOPER at his/her own cost and expense. It is provided, however, that in the event: eminent domain proceedings are required, the CITY for the purpose of securing said ea<.;ement and right-of--way, that the DEVELOPER shall deposit with CITY, a sum covering the reasonable market value of the land proposed to be taken and, to be included in said sum,, shall be a reasonable allowance for severance damages, if any. It is further provided that in addition thereto, such sums as may be required for legal fees and costs, engineering, and other incidental costs in such reasonable amounts as the CITY may require, shall be deposited with the City of Cupertino. 18. HOLD HARMLESS It is further agreed that, commencing with the performance of the Work by the DEVELOPER or his/her contractor and continuing until the completion of the maintenance of the Work, the DEVELOPER shall indemnify, hold harmless and defend the CITY from and against any or all loss, cost, expense, damage or liability, or claim thereof, occasioned by or in any way arising out of the performance or nonperformance of the Work or the negligence or willful misconduct of the DEVELOPER or the DEVELOPER'S agents, employees and independent contractors, except to the extent any of the foregoing is caused by the negligence or willful misconduct of the CITY or the CITY'S agents, employees and independent contractors. 19. INSURANCE It is further agreed that: the DEVELOPERZ shall take out, or shall require any contractor engaged to perform the Work to take out, rind maintain at all times during the performance and maintenance of the Work called for or required to be done hereunder, a policy of Page 8 of 10 insurance naming the CITY and members of the City Council of the City of Cupertino individually and collectively, and the ~~fficers, agents and employees of the CITY individually and collectively, as insured. Said separate policy shall provide bodily injury and property damage coverage to the foregoing named CITY and individuals covering all the Work performed by, for, or on behalf' of said DEVELOPER. Both bodily injury and property damage insurance must be on an occurrence basis; and said policy or policies shall provide that the coverage afforded thereby shall be primary coverage to the full limit of liability stated in the declarations, and if the CITY, its members of the City Council individually and collectively, and the officers, agents and employees of the CITY, individually and collectively, have other im~urance against the loss covered by said policy or policies, that other insurance shall not be ~:alled upon to cover a loss under said additional policy. The insurance carrier shall provide proof oi'their ratings. All ratings should be Best's Guide Rating of A, Class VII or better or that is ac:ceptable to the CITY. A. Each of said policies of insurance shall provide coverage in the following minimum amounts: for general liability for bodily injury, personal injury and property damage $1,000,000 each occurrence, with an aggrel;ate limit of not less than $2,000,000. B. The DEVELOPER shall file with the City Engineer at or prior to the time of execution of this AGREEMENT by the DEVELOPER such evidence of said foregoing policy or policies of insurance as shall be: satisfactory to said City Engineer. Each such policy or policies shall bear an endorsement precluding the cancellation or reduction in coverage without giving the City Engineer ;~t least ten (10) days advance notice thereof. The CITY shall be shown as additionally insured on a separate "Additional Insured Owners, Lessees or Contractors" (Form A) or (Form B) Endorsement provided along with the evidence of said foregoing policy of policies of Insurance. C. In the event that the Project covered herein should be mutually situated in or affect the area of jurisdiction of a separate municipality or political subdivision of the State of California, the policies of insurance re~Iuired herein and above shall co-name such municipality or political subdivision and the provision set forth herein and above for the protection of the CITY shall equally apply to municipality and political subdivision. D. DEVELOPER to use City supplied forms for proof of insurance and endorsements to policy as specified above. 20. MAPS AND/OR IMPROVEMENT PLAN'> It is further agreed that the CITY shall obtain the following map and/or plans at the DEVELOPER' S expense: A. A mylar blackline and five (5) print; of fully executed parcel map. B. A mylar blackline and twelve (12) prints of fully executed improvement plans. Page 9 ~~f 10 C. A scan in raster format of all executf;d improvement plans and map. 21 D. One (1) '/z size prints of fully executed plans and map. The DEVELOPER agrees to pay the CITY" from the development maintenance deposit the cost for all prints of plans and maps. If costs exceed the amount deposited the DEVELOPER is required to pay actual overage prior to return of original plans. SUCCESSORS This AGREEMENT shall bind the heirs, administrators, executors, successor, assignee and transferees of the DEVELOPERS. The assignment of this AGREEMENT shall not be made without approval by the City Council of the City of Cupertino. IN WITNESS WHEREOF, CITY has caused its name to be hereunto affixed by its Mayor and City Clerk, thereunto duly authorized by resolution of the City Council and said DEVELOPER has hereunto caused their name to be affixed the day and year first above written. CITY OF CUPERTINO ,~ Mayor Approved as to form ~'' Crty Attorney ~ ~ ~~ v ~~ nr~ Attach Notary acknowledgement . ~ ~ City Clerk DEVELOPER ~~ Trac ~ su 7 _ Huei-Hwang Hun Page 10 of 10 CALIFORNIA ~~LL-PURPOSE CERTIFICATE OF A(~KNOWLEDGMENT State of California County of ~,/„,,~'ct G(G,u~ On ~~ / ~G O before me, ~~'. ~ ~ ,l~ U~`~ ~ (Here personally appeared ~l<~ ~~G„~/~ !`~Gl/"~ ,~~r(~ f~~l~C. name and title ofthe officer) who proved to me on the basis of satisfactory evidence to be the persoll(s whose name s~ is a~j e subscribed to the within ' strument and acknowledged to me that he/she/th~executed the same in his/her/f~I~ authorized capacity( es and that by his/her/1 I signature(~on the instrument the person s} or the entity upon behalf of which the perso s) cted, executed the instrument. I certify under PENALTY OF PERJITRY under the lav~-s ofthe State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary Publi` C I~~~ _ HONG LI~1 ~'?y "'~ COMM. # ~~~~~77 `z. 'r°s°~ ~3~° N„" ° RV VUBt-~ , -CALIFORNIA; z' (Norary seal ° My Comm. Expires April 17, 2017 ADDITIONAL OPTIGNAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT (Title or description of attached document) (Title or description of attached document continued) Number of Pages Document Date (Additional information) CAPACITY CLAIMED BY THE SIGNER ^ Individual (s) ^ Corporate Officer (Title) ^ Partner(s) ^ Attorney-in-Fact ^ Trustee(s) ^ Other INSTRUCTIONS FOR COMPLETING THIS FORM Arty acknowledgment completed in California must comain verbiage exactly as a,~pears above in the notary section or a separate acknowledgment form must be p,~operly completed and attached to that docronent. The only exceprion is ij a dxument is to be recorded outride of Cdijornia. In such instances, atry alternative a,-knawledgment verbiage as may be printed on such a document so long as the verbiage does not require the notary to do something that is illegal for a notary in California (i.e. certifying the authorized capacity of the signer). Please check the document carejully for proper notarial wording and attach this form ifreq~ired • State and County information must be the State and County where the document signer(s) personally appeared before the notary public for acknowledgment • Date of notarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). • Print the name(s) of document signer(s) who personally appear at the time of notarization. • Indicate the correct singulaz or plural forms by crossing off incorrect fomss (i.e. lae/she/the};- is /are) or circling the correct forms. Failure to correctly indicate this information may lead to rejection of document recording. • The notary seal impression must be cleaz and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re-seal if a sufficient area permits, otherwise complete a different acknowledgment form. • Signature of the notary public must match the signature on file with the office of the county clerk. Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. Indicate title or type of attached document, number of pages and date. Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary). • Securely attach this document to the signed document 2008 Version CAPA v12.10.07 800-873-9865 www.NotaryClasses.com RESOLUTIOr1 NO. 09-101 A RESOLUTION OF THE CITY COUI\~CIL OF THE CITY OF CUPERTINO AUTHORIZING EXECUTION OF A7J IMPROVEMENT AGREEMENT BETWEEN THE CITY AND DEVELOPER HUEI-HWANG HUNG AND TRACY HSU, 21871 DOL,ORES AVENUE, PARCEL 2 WHEREAS, there has been presented t~~ the City Council a proposed improvement agreement between the City of Cupertino and Hu~~i-Hwang Hung and Tracy Hsu, 21871 Dolores Avenue, Parcel 2, and said agreement having, been approved by the City Attorney, and Developers having paid the fees as outlined in the attached Exhibit A; NOW, THEREFORE, BE IT RESOLV>=;D THAT the Mayor and the City Clerk are hereby authorized to sign the aforementioned agreement on behalf of the City of Cupertino. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 7th day of July 2009, by the follow:;ng vote: Vote Members of the Cit`~ Council AYES: Mahoney, Sandoval, Santoro, Wang, Wong NOES: None ABSENT: None ABSTAIN: None ATTEST: APPROVED: City Clerk ayor, City of pertino Resolution No. 09-101 Page 2 EXHIBIT "A" SCHEDULE OF BOND, FEES, AND DEPOSITS DEVELOPER: HUEI-HWANG HUNG Al`1D TRACY HSU LOCATION: 21871 DOLORES AVENUE, PARCEL 2 A. Faithful Performance Bond: $ 14,232.00 FOURTEEN THOUSAND TWO HUNDRED THIRTY-TWO AND 00/100 DOLLARS B. Labor and Material Bond: $ 14,232.00 FOURTEEN THOUSAND TWO HUNDRED THIRTY-TWO AND 00/100 DOLLARS C. Checking and Inspection Fee: $ 2,385.00 TWO THOUSAND THREE-HUNDRED EIGHTY-FIVE AND 00/100 DOLLARS D. Development Maintenance Deposit: TWO THOUSAND AND 00/100 DOLLARS E. Storm Drainage Fee: Basin 2 FIVE HUNDRED EIGHTYAND 50/100 DOLLARS F. Street Light -One-Year Power Cost: G. Map Checking Fee: TWO THOUSAND FIVE HUNDRED FIFTEEN AND 00/100 DOLLARS H. Park Fee: ZONE II FIFTEEN THOUSAND SEVEN HUNDRED FIF"TY AND 00/100 DOLLARS I. Reimbursement Fee $ 2,000.00 $ 580.50 N/A ~$ 2,515.00 $15,750.00 N/A OFFICE OF THE CITY CLERIC CITY HALL 10300 TORRE AVENUE • CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-322: • FAX: (408) 777-3366 WEBSITE: www.cupertino.org CUPERTINO July 21, 2009 Huei-Hwang Hung Tracy Hsu 21871 Dolores Avenue Cupertino, CA 95014 To Whom It May Concern: Enclosed for your records is a fully executed copy/ of the agreement with the City of Cupertino. If you have any questions or need additional information, please contact the Public Works department at (408) 777-3354. Sincerely, CITY CLERK'S OFFICE Enclosure