04-079 Improvement Agreement, 10222 Byrne Avev~-~=~~
AGREEMENT
10222 Byrne Avenue
APN 357'-15-079
This AGREEMENT made and entered in1:o this /cam day of ~US1"~, 2004, by and
between the CITY OF CUPERTINO, a municipal corporation of the State off California, hereinafter
designated as CITY, and Philip C. Liu and Pai-Ju Ho, Husband and wife, as Community Property
with RiEht of Survivorship, hereinafter designated as DEVELOPER.
WITNESSETH
WHEREAS, the DEVELOPER has made af~plication 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 JLK Associates, a true copy of which itprovement 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 pla:~s and specifications shall be hereinafter called the
"Plans", and the work to be done under the Plans shell be called the "Work".
Page 1 of 11
File No. 52,390
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: $ 9,585.00
110-2211
PART B. Labor and Material Bond: $ 9,585.00
110-2211
PART C. Checking and Inspection Fee: $ 2,385.00
110-4538
PART D. Development Maintenance Deposit: $ 1,000.00
110-2211
PART E. Storm Drainage Fee: Basin 2 $ 246.11
Account #: 215-4073
PART F. One Year Power Cost: N/A
110-4537
PART G. Street Trees: By Developer
PART H. Map Checking Fee: N/A
110-4539
PART I. Park Fee: Zone III N/A
Account #: 280-4083
PART J. Water Main Reimbursement: By Developer
110-4554
PART K. Maps and/or Improvement Plans: By Developer
As specified in Item #21 of agreement
PART L. Sidewalk Bond $ 2,835.00
Page 2 of 10
NOW, THEREFORE, IT IS HEREBY MUTUALLY AGREED by and between the parties
hereto as follows, TO WIT:
1. DEDICATION
B. The DEVELOPER offers to dedica~:e the real property shown on Exhibit "A", which
is attached hereto and made a part hereof b:~ 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.
C. Upon execution of this AGREEMENT, the DEVELOPER agrees to deliver a
properly executed grant deed to the CITY of 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 is;~ued 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 sum 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 and recordation of deed.
D. Upon the condition precedent that the DEVELOPER shall perform each and every
covenant and condition of this AGREEMEI~IT, 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 may 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 be accepted unless all the requirements for safety
purposes are installed such as sidewalks, handicap ramps, street lights, etc.
Page 3 of 10
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
in accordance with all plans, specification:,, standards, sizes, lines, and grades approved by
the City Engineer. The Work shall be done' in accordance with all State and County Statutes
applicable hereto. The decision of the (~ity 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 applicable.
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 shall comply with Section Three of Ordinance No.
130 of the CITY by obtaining an excavation 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 AGREEMENT, the DEVELOPER shall file with the
CITY a faithful performance bond to a~;sure 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 AND 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 a.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 authorize~~ 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 I;~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 requi~°ed, the CITY shall call on the surety to perform
this AGREEMENT or otherwise indemnify 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 furni~~hed 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 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.
1. Schedule for bond and insur;~nce release for paper bonds are as follows:
A. Release of 90 per~~ent 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 5 of ] 0
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 remaining; 10% at one year from date of acceptance after
all deficiencies have been corre~~ted 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 CI"I'Y 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 C:[TY in connection with said Project, and that
DEVELOPER shall have deposited with (;ITY, 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.
7. MAP CHECKING FEE
It is further agreed that the DEVELOPER shall deposit with CITY, prior to execution of this
AGREEMENT, for office checking of fina 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 herein at Page 2 (Part D) as a development
maintenance deposit to insure proper du:;t 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 fault}~ workmanship and/or materials appearing in said
work during the period until release of they surety bonds or other security permitted under
paragraph S.B by the CITY.
Page 6 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 deposit 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 Work; 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 TRE>=?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.
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 Municipal Code, and which is further stipulated under Part
I, Page 2 herein. Fees are also in accordance with action adopted by the City Council on
March 19, 1991 and Chapter 14.05 or Secti~~n 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, upon written notice thereof, immediately repair or
replace, without cost or obligation to the City of Cupertino, and to the entire satisfaction of
Page 7 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 Cupertino 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 aa,l 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 all 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 Cit:~ 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 and 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~~ 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.
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, damage 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 8 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 DEVELOP)=;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 member; 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 in,~urance against the loss covered by said policy or
policies, that other insurance shall not be called upon to cover a loss under said additional
policy.
The insurance carrier shall provide proof o:F their ratings. All ratings shall be a minimum of
"Best A-7" in accordance with ABAG policies.
A. Each of said policies of insurance shall provide coverage in the following minimum
amounts: For bodily injury, $100,000 each 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 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 bc~ 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 or 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~~uired 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 9 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 seven (7) prints of fully executed parcel map.
B. A mylar blackline and ten (10) prints of fully executed improvement plans.
C. 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 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 da.y and year first above written.
CITY CUPERTINO:
~~ ~ ~i
l~~ M yor
Approved as to fo
~ .
City Attorney
r
City Clerk
DEVELOPER:
~~
Pai-Ju Ho
_ _-
P clip C. u
Notary Acknowledgement Required
Exhibit A Attached
Page 10 of 10
CA~lFORN1A ALL-PURPOSE ACKNOWL~cDG~!1ENT
State of CALIFORNIA
County of SANTA CLARA
On ~0 ~-~ p'~ 1/ before me.
ate
personally appeared C.L-[~ - -.Lt, ~~
of Notary
Signer's Name:
~~ Namelsl of S~gnensl " '
-personally known to me - OR -proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) ~s/are subscribed to the within instrument
ar;d acknowledged to me that fie/they executed the
~~=--~=~°"~° same in hisfherytheir authorized capacity(ies), and that by
JOHN B. SORCI ~:rhar/their signature(s) on the instrument the person(s),
Commission # 1373080
Z t•..~ Notary Public -California or the entity upon behalf of which the person(s) acted,
Santa Clara County executed the instrument.
My Comm. Expires Oct 1, 2006
WITNESS my hand and official seal.
IOIVAL
Though the ~nformatron below is not required by law. it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachm=nr of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signers Name:
-- 'individual
= Corporate Officer
Title(sj:
= Partner - =Limited =General
= Attorney-in-Fact
= Trustee
Guardian or Conservator
Jther:
Signer Is Representing:
IRCI (NOTARY PUI
e o fficer le.g.. 'Jane Dce. otary Public')
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Number of Pages:
~hdividual
Corporate Officer
Title(s):
= Partner - =Limited .General
= Attorney-in-Fact
= Trustee
Guardian or Conservator •' `•-'
_ _ n ~-
_ Other: I TOD Ot thUR1D here I
Signer Is Representing:
-~~ -~~~ ~ -~,.~~~r~..ve ~v nor . ~aa • cano~~a ParK :,A yt;Jy-'•;.; ?roo. No. 5907 Reoraec CaI1 TO11-tree 1-000-876-502'
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RESOLUTI01v NO. 04-379
A RESOLUTION OF THE CITY COUr1CIL OF THE CITY OF CUPERTINO
AUTHORIZING EXECUTION OF IMPROVEMENT AGREEMENT
BETWEEN THE CITY AND DEVELOPERS, PHILIP C. LIU AND PAI-JU HO,
HUSBAND AND WIFE, AS COMMUivITY PROPERTY WITH RIGHT OF
SURVIVORSHIP, 10222 BYRNE AVENUE, APN 357-15-079
WHEREAS, there has been presented to the City Council a proposed improvement
agreement between the City of Cupertino and developers, Philip C. Liu and Pai-.Ju Ho, Husband
and Wife, As Community Property with Right of Survivorship, for the installation oi~ certain
municipal improvements at 10222 Byrne Avenue;, and said agreement having been approved by
the City Attorney, and Developers having paid thy; fees as outlined in the attached Exhibit A;
NOW, THEREFORE, BE IT RESOLVED 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 16"' day of August, 2004 by the following vote:
Vote Members of the City Council
AYES
NOES:
ABSENT:
ABSTAIN:
ATTEST:
City Clerk
APPROVED:
Mayor, City of Cupertino
D ~~1
Resolution No. 04-379
Page 2
EXHIBIT "A"
SCHEDULE OF BOND, ]?EES, AND DEPOSITS
DEVELOPMENT: Philip C. Liu and Psi-Ju Ho
LOCATION: 10222 Byrne Avenue
APN 357-15-079
A. Faithful Performance Bond: $ 9,585.00
NINE THOUSAND FIVE HUNDRED EIGHTY-FIVE AND 00/1 00 DOLLARS
B. Labor and Material Bond: $ 9,585.00
NINE THOUSAND FIVE HUNDRED EIGHTY-FIVE AND 00/1 00 DOLLARS
C. Checking and Inspection Fees: $ 2,385.00
TWO THOUSAND THREE HUNDRED EIGHTY-FIVE AND 00/100 DOLLARS
D. Development Maintenance Deposit $ 1,000.00
ONE THOUSAND AND 00/100 DOLLARS
E. Storm Drainage Fee: $ 246.11
TWO HUNDRED FORTY-SIX AND 11/100 DOLLARS
F. One Year Power Cost: NA
G. Street Trees: By Developer
H. Map Checking Fee: N/A
I. Park Fee: N/A
J. Water Main Reimbursement: N/A
K. Maps and/or Improvement Plans: As specified in
Item #21 of agreement
L. Sidewalk Bond $ 2,385.00
TWO THOUSAND THREE HUNDRED EIGHTY-FIVE AND 00/100 DOLLARS
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