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13. Impr. Agrmnt. 10651 Merriman Rd. DRAFT RESOLUTION NO. 07-184 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING EXECUTION OF A REVISED IMPROVEMENT AGREEMENT BETWEEN THE CITY AND DEVELOPER ZHIHONG LID, A MARRIED MAN AS HIS SOLE AND SEPARATE PROPERTY, 10651 MERRIMAN ROAD, APN 342-16-031 WHEREAS, there has been presented to the City Council a proposed improvement agreement between the City of Cupertino and developer, Zhihong Liu, a Married Man as His Sole and Separate Ptoperty, for the installation of certain municipal improvements at Merriman Road, 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 5th day of November 2007, by the following vote: Vote Members of the City CoUncil AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: City Clerk Mayor, City of Cupertino 13 - 1 Resolution No. 07-184 Page 2 EXHIBIT "A" SCHEDULE OF BOND, FEES, AND DEPOSITS DEVELOPER: ZHIHONG LID, A MARRIED MAN AS HIS SOLE AND SEPARATE PROPERTY LOCATION: 10651 MERRIMAN ROAD, APN 342-16-031 A. Faithful Performance Bond: $21,430.42 TWENTY -ONE THOUSAND FOUR HUNDRED THIRTY AND 42/100 DOLLARS B. Labor and Material Bond: $21,430.42 TWENTY-ONE THOUSAND FOUR HUNDRED THIRTY AND 42/100 DOLLARS c. Checking and Inspection Fee: $ 2,304.00 TWO THOUSAND THREE HUNDRED FOUR AND 00/100 DOLLARS D. Development Maintenance Deposit: $ 1,000.00 ONE THOUSAND AND 00/1 00 DOLLARS E. Storm Drainage Fee: Basin 2 $ 314.74 THREE HUNDRED FOURTEEN AND 74/100 DOLLARS F. Street Light - One-Year Power Cost: N/A G. Map Checking Fee: N/A H. Park Fee: ZONE II N/A I. Reimbursement Fee: N/A 13 - 2 AGREEMENT 10651 Merriman Road APN: 342-16-031 This AGREEMENT made and entered into this _ day of , 2007, by and between the CITY OF CUPERTINO, a municipal corporation of the State of California, hereinafter designated as CITY, and Zhihonl! Liu. A married man as his sole and separate I>ropertv. hereinafter designated as DEVELOPER WITNESSETH WHEREAS, the DEVELOPER has made application to the CITY to Secure a Building Permit to construct a single-family development hereinafter referred to as "Project". . WHEREAS, CITY hereby approves the improvement plans and specifications prepared for the Project by Ray H. Chen, PE, 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 shali be hereinafter called the "Plans", and the work to be done under the Plans shall be called the "Work", 13 - 3 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: 110-2211 PART B. PARTC. PARTD. PART E. PART F. PART G. PARTH. PART I. $ 21,430.42 Labor and Material Bond: 110-2211 $ 21,430.42 Checking and Inspection Fee: 110-4538 $ 2,304.00 Development Maintenance Deposit: 110-2211 $ 1,000.00 Storm Drainage Fee - Basin 2 Account #: 215-4072 $ 314.74 Street Light - One-Year Power Cost: 110-4537 N/A Map Checking Fee: 110-4539 N/A Park Fee: Zone IT Account #: 280-4082 N/A Reimbursement Fee N/A 13 - 4 NOW, THEREFORE, IT IS HEREBY MUTUALLY AGREED by and between the parties hereto as follows, TO WIT: 1. DEDICATION B. 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. 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 issued 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 th~ 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, 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 fmal 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. 13 - 5 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, 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, 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. 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. 4. 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 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 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 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 do so. 13 - 6 B. In lieu of a surety bond, the DEVELOPER ~ay 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 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 insurance release for paper bonds are as follows: A. Release of 90 percent 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. 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 CITY in connection with said Project, and that DEVELOPER shall have deposited with CITY, prior to execution of this AG~EMENT, 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 and owing as a result thereof. 13 -7 6. 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: I of Ordinance No. 47 (Revised 12/04/61) of CITY, the amount as set forth herein at Page 2 (part H). 7. 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. The deposit may be used at the discretion of the City to Correct deficiencies and conditions caused by the DEVELOPER or his 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 b.onds are released in accordance with paragraph 4 of this agreement. 8. 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). . 9. STREET LIGHT - 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 G), which amount represents the power cost for street lights for one year. 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. 13 - 8 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 AGREEMENT, as is required within Section 18-1.602, Park Land Dedication; Cupertino Municipal Code, and which is further stipulated under Part H, 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 Cupertino Municipal Code 12. REIMBUSEMENT 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 particular 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 year, to be calculated in the following manner: 1. Land Cost. Interest to accrue form 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 charge is paid; 2. 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. 3. 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 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. 13 - 9 14. SANITARY DISTRICT It is further agreed that the DEVELOPER shall f11e 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. 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 special assessments or bonds, have been complied with. 16. 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 City Engineer or Pacific Gas and Electric Company and/or Pacific Bell Company 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 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 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 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 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 13 - 10 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 DEVELOPER shall take out, or shall require any contractor engaged to perform the Work to take out, and maintain at all times during the performance and maintenance of the Work called fQr or required to be done hereunder, a policy of ~urance 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 occurrep,ce 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 employe.es 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 II Additional Insured Owners, Lessees or Contractors II (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. D. DEVELOPER to use City supplied forms for proof of insurance and endorsements to policy as specified above. . 13-11 20. MAPS AND/OR IMPROVEMENT PLANS It is further agreed that the CITY shall obtain the following map and/or plans at the DEVELOPER'S ~xpense: . A. A mylar blackline and five (5) prints of fully executed parcel map. B. A mylar blackIine and twelve (12) prints of fully executed improvement plans. C. A scan in raster format of all executed improvement plans and map. D. Two (2) ~ 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 overage prior to return of original plans. 13-12 21. SUCCESSORS This AGREEMENT shall bind the heirs, administrators~ executors, successor, assignee and transferees of the DEVELOPERS. The assignment ofthis 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 day and year first above written. CITY OF CUPERTINO: Mayor Approved as to form: City Attorney City Clerk DEVELOPER: Zhihong Liu Notary Acknowledgement Required Exhibit A Attached 13-13