02-068 MarketplaceORIGINAL
AGREJEMENT
19620,19724-19770 S1:evens Creek Boulevard
The Marketplace
APN 369-06-008, 3119-06-009, 369-06-010
~~ ~
This AGREEMENT made and entered into this a day of ~ ~ 200, by and between
the CITY OF CUPERTINO a munici al co oration of the State of C ifornia he
p rp reinafter
designated as CITY, and Evershine VI, L.P., A California Limited Partnership, hereinafter
designated as DEVELOPER.
WITNF;SSETH
WHEREAS, THE DEVELOPER has made application to the CITY to SECURE A
BUILDING PERMIT to construct Two Commercial Buildings hereinafter referred to as
"Project".
WHEREAS, CITY hereby approves the improvement plans and specifications prepared for
the Project by Centerline Land Surveying, Inc_., 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 hey°ein by reference, the same as though set out in
full;
NOW, THEREFORE, said improvement Flans 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 11
File No.: 52,308
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: Off-Site: $32,000
110-2211 On-Site: $32,040
PART B. Labor and Material Bond: Off-Site $32,000
110-2211 On-Site $32,040
PART Bl. Choker Improvement Bond Off-Site $100,000
110-2211
PART C. Checking and Inspection Fee: $3,842
110-4538
PART D. Indirect City Expenses: N/A
PART E. Development Maintenance Depo:~it: $1,000
110-2211
PART F. Storm Drainage Fee: Basin 3 $15,368.84
Account #: 215-4073
PART G. One Year Power Cost: N/A
110-453 7
PART H. Street Trees N/A
PART I. Map Checking Fee: N/A
110-4539
PART J. Park Fee: ZONE II N/A
ACCT #: 280-4083
PART K. Water Main Reimbursement Fee: N/A
110-4554
PART L. Maps and/or Improvement Plans By Developer
As Specified in Item #23
Page 2. of 11
NOW, THEREFORE, IT IS HEREBY MUTUALLY AGREED by and between the parties
hereto as follows, TO WIT:
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 AGREEMINT 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 i;;sued by a title insurance company relating to the
property offered for dedication.
(2 A standard policy of title ir.~surance issued by a title insurance company and
insuring the CITY in the su.m of: N/A, and which shall show said property
free and clear of all liens oi• encumbrances except those as the CITY shall
expressly waive in writing; said policy shall be furnished at the time of
acceptance of dedication ar~d recordation of deed.
C. Upon the condition precedent that the DEVELOPER shall perform each and every
covenant and condition of this AGREEMENT, 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, ar such longer period as may be specifically
authorized in writing by the City Engineer. In the event the DEVELOPER fail 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 wl:~atever 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 app?roved by the City Engineer of Cupertino. The
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Work shall be done in accordance with existing ordinances and resolutions of the CITY
and in accordance with all plans, specifications, 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 City Engineer shall be final as to
whether any material or workmanship meets the standards, specifications, plans, sizes 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, on, 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 rind 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 and DEVELOPER agrees to execute a
"Quitclaim Deed and Authorization" in favor of CITY, when presented to them for
signature.
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 full and faithful performance of this
AGREEMENT. The penal sum of said faithful performance bond shall be the full cost of
any payment to be made under this AGREEMENT, the value of any land agreed to be
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dedicated, and any improvements are to be made under this AGREEMENT. In the event
that improvements are to be made under t]7is AGREEMENT, the DEVELOPER shall, in
addition to said faithful performance, file with the CITY a labor and materials bond in a
penal sum adequate to assure full payment of all labor and materials required to construct
said improvements. The amount of said bonds shall be as designated by the City Engineer.
Said bonds shall be executed by a surety company authorized to transact a surety business
in the State of California and must be app~~oved by the City Attorney as to form and by the
City Engineer as to sufficiency. In the ev~:nt 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 shall call on the
surety to perform this AGREEMENT or otherwise indemnify the CITY for the
DEVELOPER'S failure to so do.
B. In lieu of a faithful performance surety bond, the DEVELOPER may elect to secure
this AGREEMENT by depositing with thf; 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).
Bl. The applicant shall design a "Neig:hborhood Entry" feature at the chokers at South
Portal Avenue, subject to the approval of the City Council. The entry feature shall be fully
completed before occupancy of the new buildings. A $100,000 bond shall be required for
this work, which shall be released upon th~~ Planning Department's approval.
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 AGREEn~ENT, 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 insurance release for paper bonds are as follows:
A. Release of 90 percent of the faithful performance bond
upon acceptance by City Council
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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 al=~sence of any claim against such bond.
C. Release of'the entire labor and material bond at six months
from acceptance after ;~11 deficiencies have been corrected and in the
absence of any claim against such bond.
D. Liability insurana~, provided by the DEVELOPER to hold the City
harmless in the event c-f liability arising from the project, to be retired
at the end of one year i f all deficiencies have been corrected and in the
absence of any claim against such insurance.
2. Schedule for Bond and Insurance Release for Cash, CD, Set-Aside Letter
are as Follows:
A. Release of 45% of bond upon acceptance by City Council.
B. Release of additiona145% at six months from acceptance
after all deficiencies hive 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 dei iciencies 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 th.e 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 claims against such insurance.
E. No interest shall be paid on any security deposited with the CITY.
6. CHECKING AND INSPECTION FEE
It is further agreed that 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 (Part C.). Should construction cost vary materially
from the estimate from which said sum is ~~alculated, the City Engineer shall notify
DEVELOPER of any additional sum due <<nd owing as a result thereof.
Page ti of 11
7. INDIRECT EXPENSES
It is further agreed that DEVELOPER shall pay to CITY, prior to execution of this
AGREEMENT, indirect expense allocablf; to processing these improvements, the amount
as set forth herein at Page 2 (Part D).
8. MAP CHECKING FEE
It is further agreed that the DEVELOPER shall 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 I).
9. 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 E) as a development
maintenance deposit to insure proper dust 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 the surety bonds or other security permitted
under paragraph S.B by the CITY.
Should the DEVELOPER complete the re~Iuired repairs to the entire satisfaction of the
CITY, the unused balance will be returned after the release of the surety bond or other
security permitted under paragraph S.B.
10. 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 I~).
11. 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 Works or improvements outlined within
the adopted Water Master Plan.
The amount shown herein at Part K, Page :~, shall be the full amount due.
Page i of 11
12. 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 hc;rein at Page 2 (Part G), which amount represents
the power cost for street lights for one yeax.
13. 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.
14. PARK FEES
It is further agreed that the DEVELOPER shall pay such fees and/or dedicate such land to
the CITY, prior to execution, as is required within Section 18-1.602 Park Land Dedication,
Cupertino Municipal Code, and which is further stipulated under Part J, Page 2 herein.Fees
are also in accordance with action adopted by the City Council on March 19, 1991 and
Chapter 14.05 or Section 18-1.602 of the ~~upertino Municipal Code.
15. 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 flans 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.
16. SANITARY DISTRICT
It is further agreed that the DEVELOPER shall file with CITY, upon execution of this
AGREEMENT, a letter from the Cupertino Sanitary District stating that the DEVELOPER
has entered into a separate AGREEMENT with the said District to install sanitary sewers
to serve all lots within said Project and stating that a bond to insure full and faithful
performance of the construction of the saki sanitary sewers and to insure maintenance of
said sanitary sewer in conformance with the provisions as set forth in Paragraph 15 above
has been filed.
17. GOVERNMENT CODE
It is further agreed that DEVELOPER shall file with CITY, upon execution of this
AGREEMENT, substantial evidence that: all provisions of Section 66493, Article 8,
Page 3 of 11
Chapter 4 of the Government Code, pertaining to special assessments or bonds, have been
complied with.
18. CENTRAL FIRE DISTRICT
It is further agreed that the DEVELOPEI[~ shall file with the CITY, upon execution of this
AGREEMENT, a letter from the Central Fire Protection District of Santa Clara County,
stating that the DEVELOPER has entered into an AGREEMENT with said District to
install fire hydrants to serve said Project and stating that all necessary fees have been
deposited with said District to insure installation and five (5) year rental fee of said
hydrants.
19. PACIFIC GAS AND ELECTRIC/PACI:FIC 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 are
notified by either the City Engineer or the Pacific Gas and Electric Company and/or
Pacific Bell Company that said fees are clue and payable.
20. 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 DEVEL~~PER 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 'the reasonable market value of the land proposed
to be taken and to be included in said sure 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.
21. HOLD HARMLESS
It is further agreed that, commencing with the performance of the Work by the
DEVELOPER or his contractor and contir,~uing 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 oi'the performance or nonperformance of the
Work or the negligence or willful misconduct of the DEVELOPER or the DEVELOPER'S
agents, employees and independent contra~:,tors, except to the extent any of the foregoing is
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caused by the negligence or willful misco~iduct of the CITY or the CITY's agents,
employees and independent contractors.
22. INSURANCE
It is further agreed that: The DEVELOPER shall take out, or shall require any contractor
engaged to perform the work to take out, quid 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 offic;ers, agents and employees of the CITY
individually and collectively, as insured. ~~aid 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 l,~e called 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-7" in accordance with ABAG Iolicies.
A. Each of said policies of insurance :;hall 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 b:y the DEVELOPER such evidence of said
foregoing policy or policies of insL~rance 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
(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 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 10 of 11
23. MAPS AND/OR IMPROVEMENT PLATJS
It is further agreed that the CITY shall obtain the following map and/or plans at the
DEVELOPER' 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 DEVELOPER agrees to pay the CITS' from the development maintenance deposit the
cost for all prints of plans and map required under Item 23.
24. SUCCESSORS
This AGREEMENT shall bind the heirs, administrators, executors, successor, assignee and
transferees of the DEVELOPER. 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 day and year first above written.
Approved as to form:
/~~/~
City Attorney
CITY OF C PE T
Mayor
City Cler
DEVELOPER:
~, v ~%7f-1 ~ ~~
An 'e M. Chan, Managing Member
Evershine VI, L.P.
Notary Acknowledgment Required
Exhibit A Attached
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