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04-045 Moxley Properties, 21949 Lindy LaneAGREF;MENT 21949 Lindy Lane APN 35E;-25-016 This AGREEMENT made and entered into this ~ ~.P 'day of Sit ~~t-~ 2004, by and between the CITY OF CUPERTINO, a municipal corporation of the State of California, hereinafter designated as CITY, and Moxley Properties-(:upertino, a California Limited Partnership, hereinafter designated as DEVELOPER. WITNESSETH WHEREAS, the DEVELOPER has made application to the CITY to Secure a Building Permit to construct 3 Single Family Dwellings hereinafter referred to as "Project". WHEREAS, CITY hereby approves the improvement plans and specifications prepared for the Project by Nelsen Engineering, R.C.E., a true copy of which improvement plans and specifications are on file in the office of the City Engineer of Cupertino; and WHEREAS, the same are incorporated herein 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 shall be called the "Work". Page 1 of 10 File No. 52,291 WHEREAS, pursuant to the provisions of t'~is 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: $ 94,605.50 110-2211 PART B. Labor and Material Bond: $ 94,605.50 110-2211 PART C. Checking and Inspection Fee: $ 4,730.28 110-4538 PART D. Development Maintenance Deposit: $ 1,000.00 110-2211 PART E. Storm Drainage Fee: Basin 2 $ 2,080.00 Account #: 215-4073 PART F. One Year Power Cost: N/A 110-4537 PART G. Street Trees: By Developer PART H. Map Checking Fee: $ 463.00 110-4539 PART I. Park Fee: Zone III $ 31,500 Account #: 280-4083 PART J. Water Main Reimbursement: N/A 110-4554 PART K. Maps and/or Improvement Plans: N/A As specified in Item #21 of agreemf~nt Page 2 of 10 NOW, THEREFORE, IT IS HEREBY MUTUALLY AGREED by and between the parties hereto as follows, TO WIT: 1. DEDICATION A. The DEVELOPER offers to dedicate the real property shown on Exhibit "A", which is attached hereto and made a part hereof by reference. Said dedicated property shall be free and clear of all liens or encumbrances except those, which the CITY 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 AGREEPvIENT, the DEVELOPER agrees to deliver a properly executed grant deed to the CITY ~~f the real property described in Exhibit "A", and 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: (1) A preliminary title report issued by a title insurance company relating to the property offered for dedication. (2) A standard policy of title insurance issued by a title insurance company and insuring the CITY in the stun of N/A, and which shall show said property free and clear of all liens or encumbrances except those as the CITY shall expressly waive in writing; said policy shall be furnished at the time of acceptance of dedication an~i recordation of deed. C. Upon the condition precedent that the DEVELOPER shall perform each and every covenant and condition of this AGREEM>=;NT, 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 one (1) year 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 I whatever manner the CITY shall decide. In the event the CITY completes the Work, the CITY ma~~ recover any and all costs incurred thereby from the DEVELOPER or the DEVELOPER'S surety or both. No final inspection shall be granted or street improvements shall not lie accepted unless all the requirements for safety purposes are installed such as sidewalks, handicap ramps, street lights, etc. Page :~ of 10 B. The DEVELOPER shall install and complete the Work in a good and worlcmanlilce 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 in accordance with all plans, specification:, standards, sizes, lines, and grades approved by the City Engineer. The Work shall be donf; 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 standards, specifications, plans, size lines and grades 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. Wherever the words "State" or "California 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. In case of conflict between the State 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. EXCAVATION PERMIT It is further agreed that the DEVELOPER :;hall comply with Section Three of Ordinance No. 130 of the CITY by obtaining an excav,~tion permit from the City Engineer before the commencement of any excavation in, or, or under the surface of any existing public street, lane, alley, sidewalk, or other public place. It is further agreed that the DEVELOPER shall notify the City Engineer of the exact date and time when the proposed excavation is to commence. 4. QUITCLAIM DEED It is further agreed that the DEVELOPER., when requested by the CITY, shall quitclaim all his rights and interests in, and shall grant 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 them for signature. 5. BONDS AND OTHER SECURITY A. Upon the execution of this AGR]~EMENT, the DEVELOPER shall file with the CITY a faithful performance bond to assure his 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 ANL- DEPOSITS. In the event that improvements are to be made under this AGREEMENT, the DEVELOPER shall, in addition to said faithful Page ~4 of 10 performance, file with the CITY, a labor ~~nd 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 L-EVELOPER shall fail faithfully to 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 indemnif y the CITY for the DEVELOPER'S failure to do so. B. In lieu of a faithful performance surety bond, the DEVELOPER may elect to secure this AGREEMENT by depositing with the CITY: 1. Cash; or, 2. A cashier's check, or a certified check payable to the order of the City of Cupertino; or 3. A certificate of deposit, or instrument of credit meeting the requirements of Government Code Section 66499 (b) 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 furnished the CITY with a faithful performance surety bond. In the event that the DEVELOPER shall fail faithfully to 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 rr~ay 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. 1. Schedule for bond and insurance release for paper bonds are as follows: A. Release of 90 percent of the faithful performance bond upon acceptance by City Council. B. 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. C. Release of the entire labor and material bond at six months from acceptance after all deficiencies have been corrected and in the absence of any claim against such bond. D. 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 been corrected and in the absence of any claim against such insurance. Page S of 10 2. Schedule for Bond And InsL~rance Release for Cash, CD, Set-Aside Letter are as follows: A. Release of 45 percent of bond upon acceptance by City Council. B. Release of additional 45 at six months from acceptance after all deficiencies have been corrected and in the absence of any claim against such bond. C. Release of remainin;; 10% at one year from date of acceptance after all deficiencies have been corrected and in the absence of any claim against such bond. D. Release of the liability insurance, provided by the DEVELOPER or CONTRACTOR to hold the CITY harmless in the event of liability arising from the subject project, at the end of one year if all deficiencies have been corrected and in the absence of any claim against such insurance. 6. 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 CITY 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 (Fart 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 and owing as a result thereof. 7. MAP CHECKING FEE It is further agreed that the DEVELOPER ;hall deposit with CITY, prior to execution of this AGREEMENT, for office checking of fin<<1 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 H). 8. 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 ]lerein at Page 2 (Part D) as a development maintenance deposit to insure proper du-st control and cleaning during the construction period. The development maintenance deposit may be utilized for repairs of defects and imperfections arising out of or due to faulty workmanship and/or materials appearing in said work during the period until release of tree surety bonds or other security permitted under paragraph S.B by the CITY. Page li of 10 Should the DEVELOPER complete the required repairs to the entire satisfaction of the CITY, the unused balance will be returned under the release of the surety bond or other security permitted under paragraph S.B. 9. STORM DRAINAGE FEE It is further agreed that the DEVELOPER :;hall 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 established in Resolution 4422, March 21, 1977, in the amount as set forth herein at Page 2 (Part E). 10. WATER MAIN EXTENSION DEPOSIT The DEVELOPER further agrees to defosit with the CITY, those monies required to comply with "Policy on Water Main Extensions Work and Deposits" dated 9/30/77. The deposit shall be held by the CITY until sari monies are needed to implement improvements outlined by the Director of Public Works or improvements outlined within the adopted Water Master Plan. 11. 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. 12. THE INSTALLATION OF STREET TREKS It is further agreed that the DEVELOPER shall, at such time as deemed appropriate by the City Engineer, plant street trees in conforrr-ance with the standards of the City of Cupertino. Variety of tree shall be selected from the C[TY approved list. 13. 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 Municip~il Code, and which is further stipulated under Part I, Page 2 herein. Fees are also in accord<nce with action adopted by the City Council on March 19, 1991 and Chapter 14.05 or Section 18-1.602 of the Cupertino Municipal Code 14. 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, up~~n written notice thereof, immediately repair or replace, without cost or obligation to the (~ity of Cupertino, and to the entire satisfaction of Page ~ of 10 said CITY, all defects and imperfections arising out of or due to faulty workmanship and/or materials appearing in said Work. 15. SANITARY DISTRICT It is further agreed that the DEVELOPER shall file with the CITY, upon execution of this AGREEMENT, a letter from the Cupertin~~ Sanitary District stating that the DEVELOPER has submitted plans for review by the District and that sanitary sewers are available to serve all lots within said Project. 16. 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 special assessments or bonds, have been complied with. 17. PACIFIC GAS AND ELECTRIC/PACIFIC: BELL It is further agreed that the DEVELOPER. shall pay to Pacific Gas and Electric Company and/or to Pacific Bell Company, any and al.l fees required for installation of overhead and/or underground wiring circuits to all electroliers within said 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 Pacific Bell Company that said fees are due and payable. 18. EASEMENTS AND RIGHT-OF-WAY It is further agreed that any easement ar~d right-of--way necessary for completion of the Project shall be acquired by the DEVELOPER at his 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 easement and right-of--way, that the DEVELOPER shall deposit with CITY, a sum covering th.e reasonable market value of the land proposed to be taken and, to be included in said surri, 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 ether incidental costs in such reasonable amounts as the CITY may require shall be deposited with the City of Cupertino. 19. HOLD HARMLESS It is further agreed that, commencing with the performance of the Work by the DEVELOPER or his 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, dam;~ge or liability, or claim thereof, occasioned by or in any way whatsoever arising out of the performance or nonperformance of the Work or the Page f~ of 10 negligence or willful misconduct of the DEVELOPER or the DEVELOPER'S agents, employees and independent contractors, except tot eh 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. 20. INSURANCE It is further agreed that: The DEVELOPI=?R shall take out, or shall require any contractor engaged to perform the Work to take out, :end maintain at all times during the performance and maintenance of the Work called for or required to be done hereunder, a policy of insurance naming the CITY and members of the City Council of the City of Cupertino individually and collectively, and the officers, 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 insurance 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 of their ratings. All ratings shall be a minimum of "Best A-T' in accordance with ABAG policies. A. Each of said policies of insurance :;hall provide coverage in the following minimum amounts: For bodily injury, $100,000 e~cch person; $300,000 each occurrence, property damage, $50,000 on account of any one occurrence with an aggregate limit of not less than $200,000. B. The DEVELOPER shall file witri 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 b~~ 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 at 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 (I~ orm B) Endorsement provided along with the evidence of said foregoing policy or policies of insurance. C. In the event that the Project coverc;d herein should be mutually situated in or affect the area of jurisdiction of a separate mu~iicipality or political subdivision of the State of California, the policies of insurance required 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. Page 5~ of 10 21. MAPS AND/OR IMPROVEMENT PLANS 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 ten (10) prints of fully executed improvement plans. B. A scan in CAD format of all executed improvement plans and map. The DEVELOPERS agree to pay the CIT~~ from the development maintenance deposit the cost for all prints of plans and map required. under Item 20. 22. 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 cau:;ed 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 d~iy and year first above written. CITY OF CUPERTINO: ayor Approved to f City Attorney City Clerk DEVELOPER: G Bret C. Moxley Moxley Properties-Cupertino Notary Acknowledgement Required Exhibit A Attached c~S'sE ae~ied ~~~~~~~ ~e~~~e Page 10 of 10 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT r'~: ~.!::G`rC`i~::~C•C` ~ ^~l`,:l:,G!~•: <; t ~^~: ~•: !`.~ <`~~.C<~,~~c`4t`.C^.~^!_.~; t`~: ~ `,yam!`,. r.:'`~:: ~ G :• ~ ^~~. !`~!.:_ ry^.~!:,`-~~ ._ ~..~: ~~ <; r• ~^ •y;~ State of California ~`• ss. • County of ~'~~~ / d~~ "• • /. ~ r - ~/Gr ~4 L''~ •, On ~ i~ '~ before me, /~~~~G'o ~ /~~P~~ ~ ,~~/~~~~~~ - C Naga dry -Ca J! ~tt ca• ~,? i . 'Jars Cc? `a~a-, ~-.. - , personally appeared ~/~(° ~ ~/~~, t « ~~_~ ~~ ~ - • /. _ personally kno',vn to me improved to ma on the basis of satisfactory evidence I-~~ A ~1 ~, ~- a .n to be the persons} whose name(s) is/are subscribed to the within instrument ano acknowledged to me that he.'she;'they executed the same in his/her,'their authorized capacity(ies), and that by hisrher/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrumer.;. ~`/ITNESS my han and official seal. OPTIONAL 7nough, the information trelow is not reGcirad by la.v, it may prove ~~a'ua, %e to persons relying on the deter. •ent ar,d co~.'d prevB,~; /raudulen; removar' and rea~achment of this lorm to anob-er dcc:;rent. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: Individual Corporate Officer -Title(s): _ Partner - `; Limited =General Attorney-in-Fact Trustee Guardian or Conservator Other: NATHAN 1. GREECE " Comm. # 1472942 N ~ N4TARY PUBIIC•CAIIfoRNI Morin County M,~ remm, Expires fE8.21,20 .~, I Signer Is Representing: i - C 1999 Nanorai M1c!ary Assoaaton • 9J50 De Soro Ave.. P 0 Bc~ ?+02 • Cnas.orn, CA 3' 17-2+02 • »M^.. •a::onainota:r o , P~oa. No.5907 Pac~xr. Ca.i To-.!-Free t-??:-?'c-c82- Number of Payes: