01-096 Tuan & ZhengAGREEMENT
20706 Kirwin Lane
APN 359-23-005
This AGREEMENT made and entered into thistly day of ~ 2001, by and between
the CITY OF CUPERTINO, a municipal corporation of the State of California, hereinafter
designated as CITY, and Sherman Tuan and Yum Zhen~, Husband and Wife, as Community
Property, hereinafter designated as DEVELOPE]f~S.
WITNESSETH
WHEREAS, THE DEVELOPER has made application to the CITY to SECURE A
BUILDING PERMIT to construct Two Single I' amily Dwellings hereinafter referred to as
"Project".
WHEREAS, CITY hereby approves the improvement plans and specifications prepared for
the Project by Edward Hahamian, 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 here-in 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 11
File No.: 52,306
WHEREAS, pursuant to the provisions of this AGREEMENT, the CITY hereby established the
amounts of Bonds, Fees, and Deposits as set fortr~ in the following schedule:
SCHEDULE OF BONDS. FEES AND DEPOSITS
Street Improvement Category:
PART A. Faithful Performance Bond: Off-Site: $16,385
110-2211 On-Site: $19,500
PART B. Labor and Material Bond: Off-Site $16,385
110-2211 On-Site $19,500
PART C. Checking and Inspection Fee: $2,130
110-4538
PART D. Indirect City Expenses: N/A
PART E. Development Maintenance Deposit: $1,000
110-2211
PART F. Storm Drainage Fee: Basin 3 $454
Account #: 215-4073
PART G. One Year Power Cost: N/A
110-4537
PART H. Street Trees By Developers
PART I. Map Checking Fee: N/A
110-4539
PART J. Park Fee: ZONE II $15,750
ACCT #: 280-4082
PART K. Water Main Reimbursement Fee: N/A
110-4554
PART L. Maps and/or Improvement Plans By Developers
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:
1. DEDICATION
A. The DEVELOPERS offer 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 DEVELOPERS agree 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 AGREEME]~1T the DEVELOPERS agree 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 DEVELOPERS shall provide, at the DEVELOPERS' sole cost and
expense, to the City:
(1) A preliminary title report issued by a title insurance company relating to the
property offered for dedicati~~n.
(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.
C. Upon the condition precedent that t)'~e DEVELOPERS 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 DEVELOPERS shall install anti 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 DEVELOPERS 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 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 DEVELOPERS or the DEVELOPERS' surety or both. No final
inspection shall be granted or street improvt:ments shall not be accepted unless all the
requirements for safety purposes are installed such as sidewalks, handicap ramps, street
lights, etc.
Page 3 of 11
B. The DEVELOPERS shall install an~i 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, 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 workma~iship meets the standards, specifications, plans,
sizes lines and grades as set forth.
C. It is further agreed that the Work sh;~ll be done in accordance with the most current
Standard Specifications of the Department ~~f 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 <<s referring to the CITY of Cupertino; also
wherever the "Director" or "Director of Pur~lic 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 DEVELOPERS 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 DEVELOPERS
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 DEVELOPERS, 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 DEVELOPERS agree to execute a
"Quitclaim Deed and Authorization" in favor of CITY, when presented to them for
signature.
Page 4 of 11
5. BONDS AND OTHER SECURITY
A. Upon the execution of this AGREElV1ENT, the DEVELOPERS 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 AGREI=;MENT, the value of any land agreed to be
dedicated, and any improvements are to be made under this AGREEMENT. In the event
that improvements are to be made under this AGREEMENT, the DEVELOPERS 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 ~~f 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 approved by the City Attorney as to form and by the
City Engineer as to sufficiency. In the event that the DEVELOPERS 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
DEVELOPERS' failure to so do.
B. In lieu of a faithful performance surety bond, the DEVELOPERS 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 :hall be the equivalent to that which would have
been required had the DEVELOPERS furnished the CITY with a faithful performance
surety bond. In the event that the DEVELOPERS 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 5'0 percent of the faithful performance bond
upon acceptance by Cite Council
Page 5 of 11
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.
2. Schedule for Bond and Insurance Release for Cash, CD, Set-Aside Letter
are as Follows:
A. Release of 4.5% of bond upon acceptance by City Council.
B. Release of additiona145% 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 defi~;iencies have been corrected and in the absence
of any claim against such bond.
D. Release of the liability insurance, provided by the developers 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 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 DEVELOPERS shall pay any and all necessary direct expenses for
inspection, checking, etc., incurred by CITE' in connection with said Project, and that
DEVELOPERS shall have deposited with CITY, prior to execution of this AGREEMENT,
the amount as set forth herein at Page 2 (Pa~:~t C.). Should construction cost vary materially
from the estimate from which said sum is c~ilculated, the City Engineer shall notify
DEVELOPERS of any additional sum due rind owing as a result thereof.
Page 6 of 11
7. INDIRECT EXPENSES
It is further agreed that DEVELOPERS shall 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).
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: ]_ 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 DEVELOPERS 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 dep~~sit 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 DEVELOPERS complete the required repairs to the entire satisfaction of the
CITY, the unused balance will be returned sifter the release of the surety bond or other
security permitted under paragraph S.B.
10. STORM DRAINAGE FEE
It is further agreed that the DEVELOPERS shall deposit with the CITY, prior to execution
of this AGREEMENT, a storm drainage ch:urge 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 F;~.
11. WATER MAIN EXTENSION DEPOSIT
The DEVELOPERS 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 said 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 2, shall be the full amount due.
Page 7 of 11
12. ONE YEAR POWER COST
It is further agreed that the DEVELOPERS shall pay to the CITY prior to execution of this
AGREEMENT, the amount as set forth herein at Page 2 (Part G), which amount represents
the power cost for street lights for one year.
13. THE INSTALLATION OF TREES
It is further agreed that the DEVELOPERS 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.
It is further agreed that the DEVELOPER shall plant 2 - 12" diameter oak trees on-site. A
bond of $25,000 is required towards compl~;tion of the work. The bonds will be released
upon approval from the Planning Department.
14. PARK FEES
It is further agreed that the DEVELOPERS 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 Ci.~pertino Municipal Code.
15. MAINTENANCE OF WORK
It is further agreed that the DEVELOPERS 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 DEVELOPERS 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 DEVELOPERS shall file with CITY, upon execution of this
AGREEMENT, a letter from the Cupertino Sanitary District stating that the
DEVELOPERS have 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 l:he said 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.
Page 8 of 11
17. GOVERNMENT CODE
It is further agreed that DEVELOPERS shall file with 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.
18. CENTRAL FIRE DISTRICT
It is further agreed that the DEVELOPERS 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 DEVELOPERS have 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/PACIFIC :BELL
It is further agreed that the DEVELOPERS 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 fee; are due 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 DEVELOPERS 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
DEVELOPERS 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 C:[TY 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
DEVELOPERS or his contractor and continuing until the completion of the maintenance
of the Work, the DEVELOPERS shall inde~nriify, hold harmless and defend the CITY
Page 9 of 11
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 mi;~conduct of the DEVELOPERS or the
DEVELOPERS' agents, employees and independent contractors, except to the extent any
of the foregoing is caused by the negligencf; or willful misconduct of the CITY or the
CITY's agents, employees and independent contractors.
22. INSURANCE
It is further agreed that: The DEVELOPERS shall take out, or shall require any contractor
engaged to perform the work to take out, anal 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. S;~id 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 DEVELOPERS. 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 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 DEVELOPERS shall file with the City Engineer at or prior to the time of
execution of this AGREEMENT by the DEVELOPERS 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
(Form B) Endorsement provided along with the evidence of said foregoing policy
of policies of Insurance.
Page 10 of 11
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 th~~ provision set forth herein and above for the
protection of the CITY shall equally apply l:o municipality and political subdivision.
23. MAPS AND/OR IMPROVEMENT PLANS
It is further agreed that the CITY shall obtain the following map and/or plans at the
DEVELOPERS' 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 CITY 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 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 cause-d its name to be hereunto affixed by its Mayor
and City Clerk, thereunto duly authorized by resolution of the City Council and said
DEVELOPERS have hereunto caused their name; to be affixed the day and year first above
written.
CITY OF CU RT
Approved as to form: ~_,
Mayor
C~ `G~2~~~~~ ~~
City Attorney City rk
DEVELOPERS:
L' _~
Sherman Tuan ~ 5 G~,~~-~ „~ ~-~-~.~
Yun Zh g -
Notary Acknowledgment Required
Exhibit A Attached
Page 11 of 11
STATE OF California
COUNTY OF Santa Clara
On November 7, 2001 before me, L. Fredericks
(Name, Title of Officer)
personally appeared Yun Zheng
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacil:y(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS rr}y hand and official seal.
~/~ ,
(Signature of Notary Public)
~~~ L FREDERICKS
COMM. ~ 1284524
NOTARY rUILIC ~ CALIFORNIA
SANTA CLARA COUNTY
Comm. Exp. DEC. 15, 2004
(This area for notarial seal)