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01-052 Tract Agreement, No. 9335ol.~~~ TRACT AGREEMENT TRACT :vo. 9335 Address: 7825 & 7851 Orion Lane This AGREEMENT, made and entered into this Zc~ day of Jww-C,~ , 2001 , by and between the CITY OF CUPERTINO, a municipal corporation of the State of California, hereinafter designated as CITY, and B. K. Development Corporation, a California Corporation 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 TRACT No. 9335 Cupertino, California, hereinafter designated as the "Tract"; and WHEREAS, said map shows certain courts, drives and roads which are offered for dedication for public use; and WHEREAS, CITY hereby approves the improvement plans and specifications prepared for the Tract by Kirkeby En~ineerin~, a true copy of said 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." File No.: 52,280 Page 1 of 9 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: $ 145,624 On-Site: $ 27,115 PART B. Labor and material Bond: Off-Site: $ 145,624 On-Site: $ 27,115 PART C. Checking and Inspection Fee: $8636.95 110-4538 PART D. Indirect City Expenses: N/A PART E. Development Maintenance Deposit: $3,000 110-2211 PART F. Storm Drainage Fee: Basin #3 $3,882.90 215-4072 PART G. One Year Power Cost:. $150 110-4537 PART H. Street Trees: N/A PART I. Map Checking Fee: $ 553 110-4539 PART J. Park Fee: Zone II $94,500 280-4082 PART K. Water Main Reimbursement: N/A PART L. Maps and/or Improvement Plans: AS SPECIFIED IN ITEM #23 File No.: 52,280 Page 2 of 9 NOW, THEREFORE, IT IS HEREBY N[UTUALLY AGREED by and between the parties hereto as follows, TO WIT: 1. INSTALLATION OF WORK It is further agreed that: A. The DEVELOPER shall install and a~mplete 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 fail or refuse 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 CIT'E' 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' surety or both. B. The DEVELOPER shall install and a~mplete 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 performed under the inspection and with the approval of the City Engineer. The Work shall be done in accordance with the existing ordinances and resolutions of the City of Cupertino, 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 thereto. 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 Spe~;ifications 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. 2. EXCAVATION PERMIT It is further agreed that the DEVELOPEIZ 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 and time when the proposed excavation is to commence. File No.: 52,280 Page 3 of 9 3. QUITCLAIM DEED It is further agreed that the DEVELOPEF:, 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 an~i DEVELOPER agrees to execute a "Quitclaim Deed and Authorization" in favor of CITY, whe~i presented to him for signature. 4. BONDS AND OTHER SECURITY A. Upon the execution of the AGREEMENT, the DEVELOPER shall file with the CITY a faithful performance bond to assure his full an<i faithful performance of this AGREEMENT. The penal sum of said faithful performance bonds shall be the full cost of any payment to be made under this AGREEMENT, the value of any land agreed to be dedicated, and any improvements to be made under this AGREEMENT. In the ev~;nt that improvements are to be made under this AGREEMENT, the DEVELOPER shall, in addition to said faithful performance, file with the CITY a labor and materials bond in a penal sum 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 shill be executed by a surety company authorized to transact a surety business in the State of Califi~rnia and must be approved by the City Attorney as to form and by the City Engineer as to sufficiE;ncy. 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 shall call on the surety to perform this AGREEMENT or otherwise indemnify the CITY for the DEVELOPER' failure to so do. B. In lieu of a 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 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 depo:;it, check, or certificate of deposit, shall be made except upon approval of the City Council. ' E. No interest shall be paid on any security deposited with the CITY. File No.: 52,280 Page 4 of 9 5. CHECKING AND INSPECTION FEE It is further agreed that DEVELOPER sh;~ll 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 calculated, the (:ity Engineer shall notify DEVELOPER of any additional sum due and owing as a result thereof, 6. INDIRECT EXPENSES It is further agreed that DEVELOPER sh;~ll pay to CITY, prior to execution of this AGREEMENT, indirect expense allocable to processing these improvements, the amount as set forth herein at Page 2 (Part D). 7. MAP CHECKING FEE It is further agreed that the DEVELOPEF: shall deposit with City, prior to execution of this AGREEMENT, for office checking of final reap and field checking of street monuments, in compliance with Section 4:1 of Ordinance No. 4'7 (Revised 12/04/61) of CITY, the amount as set forth herein at Page 2 (Part I). 8. DEVELOPMENT MAINTENANCE 1~EPOSIT It is further agreed that the DEVELOPEF: shall pay to the CITY, prior to execution of this AGREEMENT, the amount set forth herein at Paige 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 improvement bonds by the C1:TY. Should the DEVELOPER complete the required repairs to the entire satisfaction of the CITY, the unused balance will be returned after the release of the improvement bonds. 9. STORM DRAINAGE FEE It is further agreed that the DEVELOPEF: shall deposit with the CITY, prior to execution of the AGREEMENT, a storm drainage charge i~1 connection with said Project in accordance with the requirements established in Resolution 1422, March 21, 1977, in the amount as set forth herein at Page 2 (Part F). 10. ONE YEAR POWER COST It is further agreed that the DEVELOPEF: shall pay to CITY prior to execution of the AGREEMENT, the amount as set forth herein at. Page 2 (Part G), which amount represents the power cost for street lights for one year. File No.: 52,280 Page 5 of 9 11. THE INSTALLATION OF STREET' TREES It is further agreed that the DEVELOPEF: 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. 12. PARK FEES It is further agreed that the DEVELOPER sl;~all pay such fees and/or dedicate such land to the CITY, prior to execution, as is required within "Park Dedication Ordinance" Number 602, 1972, and which is further stipulated under Part .f, Page 2 herein. Fees are also in accordance with action adopted by the City Council on March 19, 1991, and Section 18-1.602 of the Cupertino Municipal Code. 13. MAINTENANCE OF WORK It is further agreed that the DEVELOPER: shall maintain the Work: A. For a period of one (1) year after acceptance of the Work by the City Council of the City of Cupertino, or B. Until all deficiencies in the Work are corrected to conform to the Plans and the CITY standards and specifications for the Work, whichever is the; later to occur. The DEVELOPER shall, upon written notice thereof, immediately repair or replace, without cost or obligation to the City of Cupertino, and to the entire satisfaction of said CITY, all defects and imperfections arising out of or due to faulty workmanship and/or materials appearing in said Work. 14. SANITARY DISTRICT It is further agreed that the DEVELOPER; shall file with CITY, upon execution of this AGREEMENT, a letter from the Cupertino Sanii:ary 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 said sanitary sewers and to insure maintenance of said sanitary sewer in conformance with the provisions as set forth in Paragraph 13 above has been filed. 15. BUSINESS AND PROFESSIONS CODE It is further agreed that DEVELOPER sh:~ll file with CITY, upon execution of this AGREEMENT, substantial evidence that all pro~risions of Section 11603, Article 8, Chapter 4 of the Business and Professions Code, pertaining to special assessments or bonds, have been complied with. 16. CENTRAL FIRE DISTRICT It is further agreed that the DEVELOPER; shall file with the CITY, upon execution of the AGREEMENT, a letter from the Central Fire Protection District of Santa Clara County, stating that the DEVELOPER have entered into an AGREEMENT with said District to install fire File No.: 52,280 Page 6 of 9 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. 17. STREET LIGHTING - P.G.and E. RATE SCHEDULE SHALL APPLY It is further agreed that the DEVELOPER: shall apply for the installation of electric power for street lighting at the earliest date possible. 18. PACIFIC GAS AND ELECTRIC/PE~CIFIC BELL It is further agreed that the DEVELOPER: shall pay to Pacific Gas and Electric Company and/or to PACIFIC BELL any and all fees. required for installation of overhead and/or underground wiring circuits to all electroliers wi~:hin said property and any and all fees required for undergrounding as provided in Ordinance No. 331 of CITY when DEVELOPER are notified by either the City Engineer or the Pacific Gas an~i Electric Company and/or PACIFIC BELL that said fees are due and payable. 19. EASEMENTS AND RIGHT 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 ar. their own cost and expense. It is provided, however, that in the event eminent domain proceedings are required by 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 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. 20. HOLD HARMLESS It is further agreed that, commencing with the performance of the Work by the DEVELOPER or their contractor and continuing; until the completion of the maintenance of the Work as provided in Paragraph 13 above, 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 negligence or willful misconduct of the DEVELOPER or the DEVELOPER' agents, employees and independf;nt contractors. 21. INSURANCE It is further agreed that: The DEVELOPER shall take out, or shall require any contractor engaged to perform the Work to take out, and m:~intain 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 File No.: 52,280 Page 7 of 9 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 prof~erty 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 insl~rance shall not be called upon to cover a loss under said additional policy.. 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 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 ~iotice thereof. C. In the event that the project covered herein should be mutually situated in or affect the area of jurisdiction of a separate municipalit•,~ or political subdivision of the State of California, the policies of insurance required her~;in and above shall co-name such municipality or political subdivision and the provision set equally apply to municipality and political subdivision. 22. 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 September 9, 1977. The deposit shall be held by the CITY until said monies are needed to implement improvements outlined by the Director of Public Works or improvements outlined within an adopted Water Master Plan. The amount shown herein at PART K, Page 2 shall be the full amount due. 23. MAP AND/OR IMPROVEMENT PLANS It is further agreed that the CITY shall obtain the following map and/or plans at the DEVELOPER' expense: A. A photo mylar and twelve (12) p~7nts of fully executed tract map. B. A photo mylar and twelve (12) prints of fully executed improvement plans. C. A scan in CAD format of all executed improvement plans and map. File No.: 52,280 Page 8 of 9 The DEVELOPER agree to pay the CIT`~ from the development maintenance deposit the cost for all prints of plans and map required under Item 23. 24. TERMS AND CONDITIONS It is further agreed that the above named terms and conditions for the said Tract shall bind the heirs, successors, administrators or assigns o:Fthe DEVELOPER. The assignment of this AGREEMENT shall not be made without appro~ral by the City Council of said CITY. 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 his name to lie affixed the day and year first above written. Approved as to form: CITY OF CUPERTINO: Mayor ~~Z~2~'~t ~GTf'/~c C' y Clerk Notary Acknowledgment Required Exhibit A Attached DEVELOPER: B. K. D elopmen poration File No.: 52,280 Page 9 of 9 State of California County of Santa Clara ~ June 20, 2001 before me, the urraersigned, a Notary Public in and for said State, personally appeared Brian J. Kelly, Jr. personally (mown to me (or proved to tre on the: basis of satisfactory evidence) to be the person(s) whose mire(s) is/are subscribed to the within instrument and aclmowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon tehalf of which the person(s) acted, executed the instrture_nt . WITNESS my hand and official seal. Signature Name: J. E. Johnson ~. c. JG'c s-' ~'`~"'i,ti,'. C.ON!M. u,,?g5',67 ~ '-~=-i"`-~,}~ _.. NOTARY PU9LIC-L-P.LIFORNIA c ~f~~: SANTA CLARA COUNTV ,y ~) ~ 4 1~' My Ccmm. Expires March 12, 2Q05 (Seal) e.