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CC Resolution No. 09-126 Improvement Agreement, 21600 Rainbow DrRESOLUTIOl~f N0.09-126 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING EXECUTION OF ATf IMPROVEMENT AGREEMENT BETWEEN THE CITY AND DEVELOPERS LOUIS YING LAU AND PHYLLIS ANN CHOY LAU, 21600 RAINBOW DRIVE, APN 366-38-012 WHEREAS, there has been presented to the City Council a proposed improvement agreement between the City of Cupertino and Louis Ying Lau and Phyllis Ann Choy Lau, 21600 Rainbow Drive, APN 366-38-012, 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 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 4th day of August 2009, by the following vote: Vote Members of the City Council AYES: Mahoney, Sandoval, Santoro, Wang, Wong NOES: None ABSENT: None ABSTAIN: None ATTEST: APPROVED: ,' `, ~ City Clerk Mayor, City of Cupertino Resolution No. 09-126 Page 2 EXHIBIT "A" SCHEDULE OF BOND, FEES, AND DEPOSITS DEVELOPERS: LOUIS Y1NG LAU AND PHYLLIS ANN CHOY LAU LOCATION: 21600 RAINBOW DRIVE, APN 366-38-012 A. Faithful Performance Bond: $ 23,061.39 TWENTY THREE THOUSAND SIXTY-ONE Al`1D 39/100 DOLLARS B. Labor and Material Bond: $ 23,061.39 TWENTY THREE THOUSAND SIXTY-ONE ArdD 39/100 DOLLARS C. Checking and Inspection Fee: $ 2,194.00 TWO THOUSAND ONE-HUNDRED NINETY-FOUR AND 00/100 DOLLARS D. Development Maintenance Deposit: $ 1,000.00 ONE THOUSAND AND 00/100 DOLLARS F. Street Light -One-Year Power Cost: $ 0.00 G. Map Checking Fee: $ 3,348.00 THREE THOUSAND THREE HUNDRED FORTY-EIGHT AND 00/100 DOLLARS H. Park Fee: ZONE III $15,750.00 FIFTEEN THOUSAND SEVEN HUNDRED FIFTY AND 00/100 DOLLARS I. Reimbursement Fee N/A AGREEMENT 21600 Rainbow Drive APN: 365-38-012 ao This AGREEMENT made and entered into this ~~ day of fU L y , a~99$, by and between the CITY OF CUPERTINO, a municipal corporation of the State of California, hereinafter designated as CITY, and Louis Ying I.an and Phyllis Ann Chov Lan, Trustees of the Lau Family Living Trust, hereinafter designated as DEVELOPER. WITNESSETH WHEREAS, said DEVELOPER desire to subdivide certain land within the City of Cupertino in accordance with the map heretofore filed with the City Council of the City of Cupertino, marked and designated as a Parcel Map in Cupertino, Californi:~, hereinafter designated as the "Parcel Map"; and 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 Nelsen Engineering, 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 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: $23,061.39 110-2211 PART B. Labor and Material Bond: $23,061.39 110-2211 PART C. Checking and Inspection Fee: $2,194.00 110-4538 PART D. Development Maintenance Deposit: $1,000.00 110-2211 PART F. Street Light -One-Year Power Cost:: $0.00 110-4537 PART G. Map Checking Fee: $3,348.00 110-4539 PART H. Park Fee: Zone III $15,750.00 280-4083 PART I. Reimbursement Fee N/A Page 2 of 11 NOW, THEREFORE, IT IS HEREBY MUTUALLY AGREED by and between the parties hereto as follows, TO WIT: 1. DEDICATION No dedication required. Z. 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 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 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. 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 exiisting ordinances and resolutions of the CITY and 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 fmal 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 applicable. D. Wherever the words "State" or "C~ilifornia Division of Highways" are mentioned in the State Specifications, it shall be consi~iered as referring to the City of Cupertino; also wherever the "Director" or "Director of Pi.tblic Works" is mentioned, it shall be considered as referring to the City Engineer. E. 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. QUITCLAIM DEED Page 3 of 11 It is further agreed that the DEVELOPER, when requested by the CITY, shall quitclaim all his/her 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 him/her for signature. 4. BONDS AND OTHER SECURITY A. Upon the execution of this AGRI~EMENT, 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 ANIJ~ DEPOSITS. In the event that improvements are to be made under this AGREEMENT, thf; 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 City 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 AGREEIViENT, 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 indemnify the CITY for the DEVELOPER'S failure to do so. B. In lieu of a surety bond, the DEVELOPER 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 furnished 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 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. Schedule for bond and insurance release for paper bonds are as follows: Page 4 of 11 i. Release of 90 percent of the 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 rind 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 been corrected and in the absence of any claim against such insurance. 5. 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 I~ITY, 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 surr~ is calculated, the City Engineer shall notify DEVELOPER of any additional sum due and owing as a result thereof. 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 b.erein 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 overage 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 established in Resolution 4422, March 21, 1977, in the amount as set forth herein at Page 2 (Part E). STREET LIGHT -ONE YEAR POWER COST Page 5 of 11 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 :>hall deposit with CITY, prior to execution of this AGREEMENT, for office checking of final 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 TREES 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 AGRF;EMENT, as is required within Section 18-1.602, Park Land Dedication, Cupertino Municipal Code, and which is further stipulated herein at, Page 2 (Part H). Fees are also in accord~mce with action adopted by the City Council on Mazch 19, 1991 and Chapter 14.05 or Section 18-1.602 of the Cupertino Municipal Code. 12. REIlVIBURSEMENT 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 1). Payments for both land and improvements shall include simple interest in the amount of seven percent per yeaz, to be calculated in the following manner: A. Land Cost. Interest to accrue from the date the street improvements are 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 chazge is paid. B. Improvement Cost. Interest to accrue from the date the street improvements are accepted by the City to the date the street improvement reimbursement charge is paid, or if installed by the City, from the date installation commenced to the date the charge is paid. Page 6 of 11 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 (:ity 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 District and that sanitary sewers are available to serve all lots within said Project. Page 7 of 11 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 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 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 easement and right-of--way, that the DEVELOPER shall deposit with CITY, a sum covering thE; reasonable mazket 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, ~Iamage 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 DEVELOPE](2 shall take out, or shall require any contractor engaged to perform the Work to take out, ~~nd 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 ~~f 11 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 called upon to cover a loss under said additional policy. The insurance carrier shall provide proof of their ratings. All ratings should be Best's Guide Rating of A, Class VII or better or that is acceptable 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 aggregate 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 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 of policies of Insurance. C. In the event that the Project coverf;d 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 rewired 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. MAPSAND/OR IlVIPROVEMENT 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 five (5) prints of fully executed parcel map. B. A mylar blackline and twelve (12) prints of fully executed improvement plans. Page 9 of 11 C. A scan in raster format of all executed improvement plans and map. D. One (1) % 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 ovE;rage prior to return of original plans. Page 1 G of 11 21. SUCCESSORS This AGREEMENT shall bind the heirs, z~dministrators, executors, successor, assignee and transferees of the DEVELOPERS. The assignment of this AGREEMENT shall not be made without approval by the City Council of thf; City of Cupertino. IN WITNESS WHEREOF, CITY has cau;>ed its name to be hereunto affixed by its Mayor and City Clerk, thereunto duly authorizE;d by resolution of the City Council and said DEVELOPER has hereunto caused their name to be affixed the day and year first above written. Approved as to form: ~` ~ City Attorney C'~ ~;aer ,.,_. Attach Notary acknowledgement CITY OF CUPERTINO: Mayor _~ City Clerk DEVELOPER: a~~z~t~ Louis Ying L u ~ ' ~~ Phylli Ann Choy Lau Page 11 of 11 CALIFORNIA ALL-PURPOSE ACKNOIWLEDGMENT State of California County of ~19-wi-~- ~~~~f91~o9 _ On D'I 'oZ~ mil' 9 before me, ~,~) N Date Here Insert Na a and Tile of the Offi r ' personally appeared ~ _~Gf ~S ~/~~ L-fit' f~ "~~ Name(s) of Signer(s) whci proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) dare subscribed to the witl-in instrument and acknowledged to me that J~ik-e/they executed the same in f~+s,4~er/their authorized cap;~city(ies), and that by ~risfher/their signature(s) on the JUDY CHOL instrument the person(s), or the entity upon behalf of commission # t62o2to which the person(s) acted, executed the instrument. ~ -® Notary Public - California ~ ~ Santa cfora county ~ I certify under PENALTY OF PERJURY under the laws My comm. Expires Dec 7, 2004 of the State of California that the foregoing paragraph is true and correct. WITNESS n and official seal. Sigrlatur Place Notary Seal Above Signature of Notary Pubic OPT/ON.AL Though the information below is not required by law, it may F~rove valuable to persons relying on the document and could prevent fraudulent removal and reattacf~ment of this form to another document. Description of Attached Document Title or Type of Document: (/~)~_ Document Date: ~ ~ Number of Pages: Signer(s) Other Than Named Above: R Capacity(ies) Claimed by Signer(s) Si ner's Name: individual ^ Corporate Officer -Title(s): ^ Partner - ^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: Signer Is Representing Top of thumb here Signer's Name: ^ Individual ^ Corporate Officer -Title(s): ^ Partner - ^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: Signer Is Representing Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 9' 313-2402 • www.NationalNotaryorg Item #5907 Reorder: Call Toll-Free 1-800-676-6827