14-054 Subdivision agreement, Main Street Cupertino, APNS 316-20-078, 079, 085 • t
DOCUMENT: 225`62062 Pages:: 21
Illllllllllllllllllllllllllllllllllilllllllllllllllllll e
RECORDING REQUESTED BY: II
Fee No Fees
City of Cupertino Taxes. -
Cop i es-
WHEN RECORDED,MAIL TO: __ AMT PA I D.
REGINA ALCOMENORAS RDE # 024
City Clerk's Office SANTA CLARA COUNTY RECORDER 4/07/2014
City of Cupertino Recorded at the request of 12- 18 PM
10300'Torre Avenue City
Cupertino, CA 95014-3255
(SPACE ABOVETHIS LINEFOR RECORDER'S USE)
NO FEE IN ACCORDANCE
WITH GOV. CODE 27383
SUBDIVISION AGREEMENT
Main Street Cupertino
APN 316-20-078, 079 & 085
\ O Original
13 For Fast Endorsement
City of Cupertino
SUBDIVISION AGREEMENT
Main Street Cupertino
APNS: 316-20-078,079 &085
1
This AGREEMENT("Agreement") ismadeand entered into this 31 day of 1y117 rG�
2014, by and between the CITY OF CUPERTINO, a municipal corporation of the State of California, ("CITY"),
and MainrStreet Cupertino Aggregator, LLC, a Delaware limited liability company("Subdivider") for a mixed
development for retail, hotel, commercial, office and residential use.located at northwest corner of Stevens
Creek Boulevard and Tantau,Avenue.
RECITALS
1. Pursuant to'the Subdivision Map Act of the StateiofCalifornia and the City's local ordinancesand
regulations relating to subdivision maps, Subdivider has presented to the City for approval a final
subdivision map(the "Map")for the subdivision of,certain real property in the City of Cupertino, designated
as TractNo..10172(the "Subdivision").
2. Subdivider has prepared and City has approved the following plans and related specifications
(the 'Improvement Plans") for construction, installation and completion of certain public improvements in
connection with the Subdivision (the "Improvements). The Improvement Plans are on 'file in the City's
Department of Public,Workssand are incorporated into this Agreement by this reference.
3. Subdivider, has also offered for dedication to City certain streets, ways and easements
delineated on the Map (the"Dedications").
4. On ¢ivu + Z5A-l`2014, the City Council approved the Map and offers of dedication shown on
the Map, conditioned on Subdivider entering into this Agreement to construct and complete the
Improvements.
NOW, THEREFORE; in consideration of City's approval of the Map, and in order to insure
satisfactory performance by Subdivider of its obligations under the Subdivision Map Act and the Cupertino
Municipal,Code, City^and Subdivider agree as follows:
1. SUBDIVIDER'S OBLIGATION TO CONSTRUCT IMPROVEMENTS
a. Completion of Improvements. Subdivider,,at its own expense, and in compliance with:all provisions
of the Subdivision Map Act, the.Cupertino Municipal Code, the Map and any, amendments thereto, and
other applicable laws, shall furnish, install, and construct all required improvements in conformance°with
the Improvement Plans. The decision of the City Engineer shall be final as to whether-any material or
workmanship:meets,the plans, specifications, and standards as set forth.
b. Compliance with applicable laws and rules. Subdivider shall construct the Improvements and the
Improvements shall be constructed 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
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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.
c. Repair and replacement of damaged public facilities. Subdivider shall, at its own expense, repair or
replace all public improvements, public utility facilities, surveying monuments and other public facilities
that are destroyed or damaged as,a result of any work under this agree ment..Subdivider shall promptly
notify the City Engineer of such damage and shall obtain the City Engineer's approval of all repair and
replacement of damaged facilities.
d. Subdivider's responsibility until City's.acceptance. Until.City accepts the Improvements, Subdivider
shall"be responsible for the care and maintenance o'i such improvements and shall bear all risks of loss or
damage to the, improvements. City shall not have any liability for any accident, loss, or damage to the
Improvements prior to their completion and acceptance by City. City's acceptance of the Improvements
shall not constitute a waiver of any defects in the Improvements orSubdivider's obligation to repair such
defects as provided in'section 9 of this Agreement.
e. Time.for installation of improvements. SUBDIVIDER shall install and complete the Improvements
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 pursuant,to section 1(f) of this Agreement (time
extensions). In-the event the SUBDIVIDER 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 all costs incurred thereby
from the SUBDIVIDER or the SUBDIVIDER6S 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.
f.Time extensions.The City Engineer, in his or her.,sole discretion, may approve;in writing, a request for
extension or completion of the time required for construction of the Improvements upoma,showing of
good cause by the Subdivider. Good cause may include delay resulting from an act of the City, acts of God,
strikes, boycotts, or similar job actions which prevent the conduct of the work. In approving a request for
time extension, the City Engineer may impose reasonable related conditions;such as requiring Subdivider
to furnish new or modified improvement security guaranteeing performance of this Agreement, as
extended, in an increased amount necessary to compensate for any projected increase in the estimated
total cost.of Improvements, as determined.by the City Engineer.
g. Permits..Subdivider shall, at its own expense, obtain and comply with the conditions of all necessary
permits and licenses for the construction of the Improvements and give all necessary notices and pay all
fees,and taxes required by law.
2.ACQUISITION_AND DEDICATION OF EASEMENTS OR RIGHTS OF WAY
a. SUBDIVIDER,offers to dedicate all of the public easements.(Public Utility Easement, Public Pedestrian
Access Easement, Public Vehicular Access Easement, Emergency Vehicle Access Way and Sidewalk
Easement) shown on the Map for Tract No. 10172 as filed for record with the County of Santa Clara, which
is made a part hereof by reference (the "Dedicated Property"). Upon the condition precedent+that the
'SUBDIVIDER shall perform each and every'covenant and condition of this AGREEMENT, the CITY agrees to
accept said real property offered,for dedication.
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The,Dedicated Property"shall be free and.clear of all liens or encumbrances except those which,the CITY
agrees to waive in,writing. Subdivider agrees not to revoke this offer of dedication, and to keep said offer
open until the CITY accepts offer. Upon execution.of this Agreement, Subdivider agrees to dedicate to the
CITY the real property as described in Tract No. 10172, and.shall provide such other executed conveyances;
or instruments necessary to convey clear title as herein required. The.SUBDIVIDER shall provide, at the
SUBDIVIDER'S sole cost and expense, to the City at the time of acceptance of,dedication.and recordation of
deed as necessary, (1) a preliminary title report issued by title insurance company relating to the property
offered fordedication, and (2) a:standard policy of title insurance issued by a title insurance company and
insuring the CITY, snowing that the:Dedicated Property is free and clear of all liens or encumbrances except
any that the City expressly agreed to waive.
b. Subdivider shall acquire any easement and right-of-way necessary for completion of the Project at its
own cost and expense. However; that in the event eminent domain proceedings are required, the CITY for
the purpose of securing said easement and right-of-way, SUBDIVIDER 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, andother incidental costs in
such reasonable amounts as the CITY may require,shill be deposited with the City of Cupertino.
3..INSPECTION AND FINAL ACCEPTANCE
a. Subdivider shall at all times maintain proper facilities and safe access for inspection of the
Improvements by the City Engineer.
b. Upon completion of the improvements or any category of improvements in compliance with the
Improvement Plans.and all applicable City standards, then the City Engineer shall certify completion of the
Improvements. Subdivider shall,bear all costs of inspection and certification for acceptance. Acceptance by
the City Engineer shall not constitute a waiver by the City of any defects in the Improvements.
4. QUITCLAIM DEED
SUBDIVIDER, when requested by the'CITY, shall quitclaim all his/her eights,and interests in, and shall grant
to CITY authorization to extract water from the underground strata lying beneath said project. SUBDIVIDER
agrees to execute,a"Quitclaim Deed and Authorization" favor of CITY, when presented to him/her for
signature.
S.,SECURITY
a. Reguired.Security. Prior to execution of this Agreement, Subdividershall provide the following.
security to City in a form acceptable to the City:
(1) Faithful performance. Security for faithful performance in the amount set forth in Part A of
Exhibit.A, the SCHEDULE OF BONDS,FEES AND DEPOSITS, attached and incorporated by reference
as Exhibit B.
(2) Labor and Materials. Security for labor and materials in the.amount set forth in Part B'of Exhibit
A, the SCHEDULE OF BONDS, FEES AND DEPOSITS, attached and incorporated by reference as
Exhibit C.
b. Form of Security. Subdivider shall provide as security, bonds executed by a surety company
authorized to transact a surety business in theState of California and approved by the City as to sufficiency.
In the event that the SUBDIVIDER 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
Page<; of 12.
CITY shall call on the surety to perform this AGREEMENT or otherwise indemnify the CITY for the
'SUBDIVIDER'S failuretodo-so.
In lieu of a surety bond, the SUBDIVIDER may elect to secure this AGREEMENT by depositing with.the CITY
(1) Cash; (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 acceptable to the City and meeting the requirements of
Government Code Section 66499 (a) or (b). 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 SUBDIVIDER furnished the.CITY with a faithful performance surety bond.
In the event that the SUBDIVIDER 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 may apply the proceeds'of'said security thereto.
c. Release of Security. No release of surety bond, cash deposit,check or certificate of deposit°shall'be
made except upon approval of the Director of Public Works. Schedule for bond and insurance release for
paper bonds'are as follows:
(1) Release of 90 percent of the faithful performance bond upon acceptance by the Director of
Public Works.
(2) Release of the remaining 10 percent of ehe performance bond at one year from acceptance
after all deficiencies have been corrected and in the absence of any claim againstisuch,bond.
(3) 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, reduced to
an amount equal to the total amount claimed by all claimants'for whom liens have been filed
and of which notice has beeogiven to the City, plus an,amount reasonably determined by the
City Engineer to be-required to assure the performance of any other obligations,secured by the
security. The balance of the security shall be released upon settlement or release of all claims
and obligations forwhich,the security was given.
(4) Liability insurance, provided by the SUBDIVIDER 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 inthe,absence of any claim against the insurance.
6. PAYMENT OF REQUIRED FEES
a. Permits and licenses. Subdividershall, at its sole expense, obtaimall necessary permits,and licenses
for the construction and installation of the Improvements, give all necessary notices, and pay all fees
required by City ordinance, including but not limited -io,the fees°described in this Agreement, and all taxes
required by law.
b. Fees. Subdivider shall pay fees in the amounts set forth in Exhibit A, including but not limited to the
following, as required:
(1) Inspection Fees. SUBDIVIDER shall pay all.necessary direct expenses for inspection, checking,
etc. incurred by CITY in connection with said Project,,and that•SUBDIVIDER;shall have deposited
sufficient funds with CITY, prior to execution of this AGREEMENT. Should construction costs
vary materially from the estimate from which this sum is calculated, the City Engineer shall
notify'SUBDIVIDER of any additional sum flue and owing�as.a result thereof.
(2) Storm Drainage Fee. SUBDIVIDER 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.
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(3) Mao'Checking Fee. SUBDIVIDER 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.
(4) Park Fee. SUBDIVIDER shall pay such fees and/or dedicate such land to the CITY, prior to
execution-of this AGREEMENT, as is required within Section 38-1:602, Park Land Dedication,
Cupertino Municipal Code. Park fees are calculated in accordance with action originally adopted
by the City Council on March 19, 1991 and Chapter 14.05,or.Section 18-1.602 of the Cupertino
Municipal Code^and as subsequently amended.
(5) Reimbursement Fee. SUBDIVIDER shall deposit with the CITY, prior to execution of this
AGREEMENT,.a reimbursement fee forams street improvements that have been installed by the
City,or by another property owner. Subdivider shall pay the Cityfor the cost-of the land at the
cost to the City, or another properly 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 asset forth in a reimbursement
agreement. 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:
(i) Land Cost. Interest to accrue from the date.the street improvements are accepted by
the City to the,daterthe street improverents 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.,
(ii) 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.
(iii) 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.
7. DEVELOPMENT MAINTENANCE DEPOSIT
SUBDIVIDER shall pay to the CITY, prior to execution of this AGREEMENT, the amount set forth in Exhibit A
as a development maintenance deposit. City may use the,deposit at its discretion to correct deficiencies
and conditions caused by the SUBDIVIDER or his/her contractor that may arise during or ;after the
construction of the development, and to obtain copies of approved plans,for the CITY's files. If the costs
exceed the amount deposited, SUBDIVIDER shall pay actual overage prior to return of original plans. Any
unexpended amount will be returned to the SUBDIVIDER at the time all bonds are released in accordance
with paragraph 5 of this agreement.
8.STREET TREE INSTALLATION
SUBDIVIDER'shall provide,funds,to the City for purchase and planting of street trees as deemed appropriate
by the City Engineer; or shall, at the discretion and at such time as deemed appropriate by the City
Engineer, plant street trees in conformance with the standards of the City of Cupertino. The variety,
number and location of trees'are subject to City's prior approval.
Page,5 of 12
9. MAINTENANCE AND WARRANTY
a. Warranty Period. Subdivider guarantees and warrants the Improvements and agrees to remedy
any defects, damages, or imperfections in the Improvements arising from faulty or defective,;materials or
construction of the Improvements for a period of one (1) year after City's final acceptance of the
Improvements. Subdividers obligation under this section shall include the repair, replacement, or
reconstruction of'all irrigation systems and all trees,shrubs, ground cover and landscaping for the required
one-year period.
b. Warranty repairs and replacements. If, within the warranty period, the Improvements or any
part of the Improvements fail to fulfill any of the requirements of this Agreement or the.Improvement plans
and specifications, Subdivider shall repair, replace or reconstruct any defective or otherwise unsatisfactory
parts of the Improvements without,delayand at no cost to City. If(a) Subdividerfails'to commence repairs
within thirty (30) days.of the date of mailed written notice from City, or (b) City determines that public
safety requires repair before-Subdivider can be notified, City may, at its sole option, perform the required
r
repair itself. Subdivide agrees to pay the cost of-any repairs City performs pursuant to.this agreement and
City may, at its sole option, recover that cost as a lien against.Subdivider's property.
10. SANITARY DISTRICT
SUBDIVIDER shall file with the CITY, upon execution of this AGREEMENT, a letter from the Cupertino
Sanitary District stating that the SUBDIVIDER has submitted plans for review by the District and that
sanitary sewers are available to serve all lots within the Project.
1-1. GOVERNMENT COSTS
SUBDIVIDER 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, pertainingto special assessments,
or bonds, have been complied with.
12. UTILITIES
SUBDIVIDER shall pay to Pacific Gas and Electric Company, AT&T; and/or appropriate utility companies, all
fees required for installation of overhead and/or underground wiring circuits to all electroliers`within said
property and all fees required' for undergrounding as provided in Ordinance No. 331 or subsequently
adopted ordinances of CITY or regulations of the appropriate utilities,when the SUBDIVIDER is notified by
either the City Engineer, Pacific Gas and Electric Company, AT&T, or appropriate utility companies that said
fees are due and'payable.
13. HOLD HARMLESS.AND INDEMNIFICATION
a.:City or any.,of its officers, employees or agents shall not be liable for any'injury to persons or
property occasioned by reason of the acts or omissions.of Subdivider; its agents, employees, contractors
and subcontractors in the performance of this Agreement. Subdivider further agrees to protect, defend,
indemnify and hold harmless City, is officials, agents, and employees,from any and all claims, demands,
causes of action, liability or loss of any sort, including but not limited to attorney fees 2and litigation
expenses;.because of or arising out of acts or omissions of Subdivider, itsragents,.employees, contractors
and subcontractors in"the,performance of this Agreement, including all claims, demands,,causes of action,
liability or loss because of or arising out of, in whole or in part, the design and construction of the
improvements.This indemnification and agreement to hold harmless shall.extend to injuries to persons and
damages or taking of property resulting from the design or construction of the Subdivision, and the public
improvements described in this Agreement, and in addition,to adjacent property owners as a consequence
of the diversion of waters from the design or construction of public drainage systems, streets and other.
publicimprovements.
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b. Acceptance by City of the Improvements shall not constitute an assumption by City of any
responsibility for any damage ortaken covered by,thissection. City shall not be responsible for the design
or construction of the subdivision or the improvements pursuant to the approved Improvement Plans or
map, regardless of any negligent action or inaction taken by the City in approving the plans or map, unless
the particular improvement design was specifically required by City over written objection by Subdivider,
indicating that the particular improvement design was dangerous or defective and suggested an alternative
safe and feasible design, submitted to the City Engineer before approval of the particular improvement
design.
c. After City's acceptance of the Improvements, Subdivider shall remain obligated to correct or
eliminate any defect in design or dangerous condition created by defects in design or construction,
provided however, that developer shall not be responsible for routine maintenance. Provisions of this
section shall remain in full force and effect for ten (10) years following City's acceptance of the
Improvements. Subdivider acknowledges and agrees,thatSubdivider shall be responsible and liable for the
design and construction of the Improvements and other work done pursuant to this Agreement and that
City.shall not be liable for any acts or omissions in approving, reviewing, checking, correcting; or modifying
any Improvement Plans or related specifications or in approving, reviewing or inspecting any work or
construction. The improvement security shall not be required to cover the provisions of this paragraph
beyond the guarantee and warranty period specified in this agreement.
14. INSURANCE
SUBDIVIDER shall maintain in full force and effect at all times during the term ofthis Agreement-and shall
provide to the CITY a copy of said insurance policy prior to starting work within the public right-of-way. The
policy of insurance shall name 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;additionaCinsured. 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
SUBDIVIDER. Both bodily injury and property damage insurance must be on,an occurrence basis; and said
policy orpolicies•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 be licensed to do business in the state of California and provide proof of their
ratings. All ratings should be Best's Guide Rating of A, Class'Vlj or better or that,is acceptable to the CITY.
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$2,00000.
SUBDIVIDER shall file with the City Engineer at or prior to the time of execution of this,AGREEMENT by the
SUBDIVIDER evidence of insurance coverage satisfactory to.the City. Each policy or policies shall bear an
endorsement precluding the,cancellation or reduction in coverage without,giving the City Engineer at least
thirty(30)days advance notice thereof.
In the event that the Improvements are situated in or affect the area of jurisdiction of a separate
municipality or political subdivision of the State of California, the required insurance shall also name the
other jurisdictions)as additional insured.
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15. MAPS'AND/OR IMPROVEMENT PLANS
Subdivider shall provide CITY with`the following maps and/or plans at the SUBDIVIDER''S expense:
A. A mylar blackline,and three(3) prints (if fully executed parcel map.
B. A mylar blackline and three(3) prints of fully executed improvement,plans.
C. A scan,in raster format of all executed improvement plans and map.
D. One (1) %size prints of fullyexecuted plansand map.
The,SUBDIVIDER agrees to pay the CITY from.the-development maintenance deposit the cost,for all prints
of plansand maps. If costs exceed the:amountdeposiged the SUBDIVIDER is required to pay actual overage
prior to return of original plans.
16.ASSIGNMENT
Subdividershall not assign this agreement•withoutthe•prior written consent of the City. Any attempted,or
purported assignment in violation of this'paragraph shall be null and void and have no force or effect. The
sale or other disposition of the�Project shall not relieve Subdivider of its obligations under this agreement. If
subdivider intends to sell the Project or any portion of the Project to any other person or entity,
Subdivider may request a novation-ofthis,Agreement and substitution of improvement security.
17. COVENANT RUNNING WITH THE LAND
This Agreement shall inure to the benefit of, and be binding upon the heirs, administrators, successors,
assigns and transferees of the Parties, and shall be recorded in the Office of the County Recorder and
constitute a covenant running with the land. Upon any sale, or division of the Property, the terms,
covenants, conditions and restrictions of this agreement shall apply to each parcel, and the owner or
owners of each parcel shall,succeed to the obligations imposed upon Subdivider by this,Agreement.
18. DEFAULT,BREACH,.AND'REMEDIES TO CITY
a. Default. Default of Subdivider shall include, but,notbe limited to:
(1) Subdividers failure to timely commence construction of Public Improvements under
this Agreement;
(2)Subdivider's failure'to timely complete construction of'the Improvements;
(3) Subdivider's failure to timely cure any defect in the Improvements;
(4) Subdivider's failure to perform substantial construction work for a period of 20
consecutive calendar days aftercommencement of the work;
(5) Subdividers insolvency, appointment of a receiver, or the filing of any petition in
bankruptcy; either voluntary or involuntary, which Subdivider'fails to discharge within 30
days;
(6) The commencement of foreclosure action against the subdivision or a portion thereof,
or any conveyance-in lieu or in avoidance of foreclosure;or
(7) Subdivider's failure to performany other obligation under this Agreement.
b. City reservesall remedies available to it at law or inequity for breach of Subdivider's obligations
under this Agreement. The City shall have the right, subject to this section, to draw upon or use the
appropriate security to mitigate City's damages in the event of default by Subdivider. City's right to draw
upon or use the security is in addition to any other remedy available to City. The parties acknowledge that
the estimated costs and security amounts may not reflect the actual cost of construction of the
improvements and, therefore, City's 'damages for Subdivider's default shall be measured by the cost of
Page 8 of 12
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completing the required improvements. Citymay use the sums provided by the security for completion of
the Improvements in accordance with the,Improvement Plans.
c. In the event that Subdivider fails to cure any default under this Agreement within twenty (20)
days after the City mails written notice of such default to Subdivider and Subdividers-surety, Subdivider
authorizes City to perform the obligations for which Subdivider is in default and agrees to pay the entire
cost of.such performance.by City.
d. City may take over the work and complete the Improvements by contract or by any other
method the City deems appropriate, at the expense of Subdivider, and Subdivider's surety shall be liable to
City for any excess cost or damages to City resulting therefrom'. In such event, City, without liability for so
doing, may take possession of and use any of Subdivider's materials, appliances, plant and other property
that'areat the work site;ancl are necessary to complete the Public Improvements.
e. Subdivider's failure.to•comply with the terms,of this Agreement constitutes Subdivider's consent
for the City to file a notice of violation against all lots in the;Subdivisiomor to rescind or otherwise revert
the subdivision to acreage. Subdivider specifically recognizes that the determination of whether a reversion
to acreage or rescission of the, subdivision approval constitutes an adequate remedy for Subdivider's
default shall be within City's sole discretion. The remedy provided by this Subsection is in addition to all
other remedies available to City, and Subdivider agrees that the choice of remedy or remedies for
Subdividers breach shall be within City's discretion.
f. In the event that 'Subdivider'fails to perform any obligation under this Agreement, Subdivider
agrees,to'pay all costs and expenses incurred by City in securing,performance of those:obligations, including.
but not limited tofees'and charges,of architects, engineers,attorneys and other professionals; and costs of
suit and reasonably attorneys'fees.
g. City'sifailure to take enforcement action with respect to a default, or to declare a breach, shall
.not be construed as a waiver of that default or breach or any subsequent default or breach by Subdivider.
19. SUBDIVIDER NOT AGENT OF CITY
Neither Subdivider nor anyof'Subdivider's.agents or contractors are or shall be considered to be agents of
City in connection with the performance of Subdivider's obligations under this Agreement.
20. SUBDIVIDER.TO WARN PUBLIC
Until final acceptance of the improvements, Subdivide.,shall give good and adequate warning to the public
of any dangerous condition of the Improvements, and shall take reasonable actions to protect'the public
from such dangerous condition.
21. NOTICES
All notices, demands, requests or approvals to be given under this Agreement shall be,given in writing and
conclusively shall be deemed served when delivered personally or on the second business day after the
deposit thereof in the United States Mail, postage prepaid, registered or certified, addressed as hereinafter
provided.
All notices, demands, requests, or approvals from Subdivider to City shall be:addressed'to City at:
City of Cupertino
10300 Torre Ave.
Cupertino CA 95014
Attention: Public Works Director/City Engineer
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All notices, demands, requests, or approvals from City to Subdividers hall be addressed to Subdivider at:
Main Street Cupertino Aggregator, LLC, a Delaware limited liability company
203 Redwood Shores Parkway,Suite200
Redwood City, C&94065
Attention: Peter Pau
22. NO VESTING OF RIGHTS
Performance by Subdivider of this Agreement,shall not be construed to vest Subdivider's rights with respect
to any change in any zoning or building law or ordinance.
23. TIME IS,OF THE ESSENCE
Time is of the essence in the performance of this agreement,bysubdivider.
24. NONDISCRIMINATION
Subdivider, its agents, employees; contractors and subcontractors.shall not discriminate in any way against
any person on the basis of age, sex, race,,color, religion; sexual orientation, actual or perceived gender
identity, disability, ethnicity, or national origin in connection with or related to the performance of this
Agreement.
25. GOVERNING LAW AND ATTORNEY FEES
This Agreement shall be interpreted under, and enforced by the laws of the State of California excepting,
any choice of law rules which may direct the application of laws of another jurisdiction. The,Agreement
and obligations of the parties are.subject to all valid laws, orders, rules, and regulations of the authorities
having,jurisdiction over this Agreement (or the successors of those'authorities).Anysuits brought pursuant.
to this Agreement shall be filed with the courts of the County of Santa Clara,State of California..
If City sues to compel Subdividers performance of this Agreement, or to recover damages or costs incurred
in completing or maintaining the work on the Improvements, Subdivider agrees to pay all attorneys`fees
and other costs and expenses of litigating incurred by the City, even if Subdivider subsequently resumes
and completes the,work.
26. RELATIONSHIP OF PARTIES
Neither Subdivider nor any of itscontractors, employees or agentsjshall be deemed to be agents of.the City
in connection with the Performance of subdividers obligations under this agreement.
27. SEVERABILITY
The provisions of this Agreement are;severable. If any portion of this"Agreement is field invalid by court of
competent jurisdiction,the remainder of the agreement shall remain in full force and effect.
28. INTEGRATED AGREEMENT
This Agreement represents the full and complete understanding of every kind or nature whatsoever
between the parties hereto, and all preliminary negotiztions;and agreements of whatsoever kind or nature
are merged herein. No verbal agreement or implied covenant shall be held to vary the,provisions hereof.
Any modification of this Agreement will be effective only by written execution,signed by both City and
Subdivider. All unchecked boxes do not apply to this Agreement.
Page 10 of 12
IN WITNESS WHEREOF; the Parties have caused this agreement to be executed by their respective, duly
authorized officers on the date listed above.
CITY OF CUPERTINO:
Approved as to form:
City Attorney iBorden, P:E.
Director of'Public Works
l:
1 <.� 304—
Main Street Cupertino Aggregator; LLC, a
Delaware limited liability company
Attachments:
Exhibit'"A"-Schedule of Bonds, Fees, Deposits
Exhibit"'B"- Faithful Performance Bonds
Exhibit "C"-.Labor and Materials.Bonds
Subdivision Improvement Agreement Main Street Final 02-06-14,
Page 1 1 of 12
IN WITNESS WHEREOF, the Parties have,caused,this agreement to be executed by their respective, duly
authorized officers on the date listed above.
CITY OF CUPERTINO:
Approved�asto form:
City.Attorney Timm Borden, P.E.
Director of Public Works
SUBDIVIDER:
Peter Pau
Main Street Cupertino Aggregator, LLC, a
Delaware limited liability company
Attachments: CO CTOR:
Exhibit "A"-Schedule of Bonds, Fees, Deposits
Exhibit"B"- Faithful Performance Bonds
Exhibit "C"-Labor and Materials Bonds
Bret Sisney
Devcon Constructio Incorporated
Subdivision Improvement Agreement Main Street Final 02-06=14
Page I I of 12
CALIFORNIA ALL-PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
State of California.
County of 1-y1AT�,o
Oil �/ IMF before me, VoTAr,-�Z tISLIL
(Here insert namoand title of the officer)
'personally appeared A-rffl P
A1X.
who proved to me on the basis of satisfactory evidence to be the person(s) whose narne(s) is/subscribed to
the within instrument and ackno ledged to me that hcls /tWy executed the same in his/I tWir authorized
capacity(ies), and that by his/li /t�r signature(s) on the instrumenfthe person(s), or the entity upon behalf of
which the persons) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph
is true and correct.
KATIE YAO
+ �v• Commission a 1914559
WITNESS my Band chid official seal. `z Fyn< Notary Public - California i'
San Mateo County s
My Comm. Expires Dec 5, 2014
Signature n Mary.Public
(Notary:Scal)
' ADDITIONAL OPTIONAL INFORMATION
INSTRUCTIONS FOR COMPLET[NGTHISTORM
1 Arm u,A'nom'ledgment completed In Caflfinmia mum contain verbiage emrly as
DESCRIPTION OF THE ATTACHED DOCUMENT appems dbove in'the noimy section or a separate acknmvledguicut form nnuct he
p,operlj, compliled ond,wrached to that document. The only exception m if a
docaruent is to.be recorded moside rf Califrnnia. In such instanceq any.afternatim,
(Title or description of attached document) ac,lnuu4cogmenr verbiage as mar be pruner'tar such a document so'long as die
ttp biage.does lot,equine the notmy to do.something that is illegal fur o nblaty in
Ccffornin (i.e. certifying the mdhoazed1carpocity,of the signer).:Please.cheek the
(Title or description of attached document continued) dn:unrenr careftdlyfin.propervramrfall warding and bttnchtiisfitnrrifrcold,ed.
Number of Pages DOCLiment Date • Slate and Comity information must be the State and County where"thedecnment
-- signer(s)personally appeared before the notary for acknowledgment.
• Date of notarization must.beihedate that the.signer(s).personally appeared which
must also be the same date the acknowledgment is completed,
(Additional information) • The notary public must.print.his orlher�amc as it appears within his or her
commission followed by a comma and then your title(notary public).
• Print Ihe,name(s) of document signcr(s) who personally appear at the time of
notarization.
CAPACITY CLAIMED BY THE SIGNER • Indicate Tile correct singular or plural forms by crossing off incorrect forms(i.e.
❑ In(Iividual(S) �Ipelshchhe>`-is lare)Apr circling iltecorrect forms.Failure to correctly indicate this
information may lead to rejection of documan recording.
❑ Corporate Officer s 'file notary seal impression must be clear and photographically reproducible.
Impression must nol cover texoor lines. If seal impression smudges,re-seal if a
(Title) r efficient area permits,otherwise complete a different acknowledgment form.
❑ Partner(s) • Signature of the notary public must match the signature on file with the office of
the county clerk.
E1 AIIOITey-in-Facf 4 Additional infornimion is not required but could help to ensure this
❑ Trustee(s) acknowledgment is not misused or altuched to a different document.
❑ OtheP Indicate title or type of attached'document,number of pages and date.
Indicate the capacity claimed by the,signce If[he claimed capacity is a
i corporate officer,indicate the title(i.e.CFO,CFO,Secretary).
Securely atlachthis document to the signed document
I
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2008Versiun CAPAv12;10:07800.873-9865 www.NotaryClasses.com
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189
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State of California
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On 311 /\-zA before me, x-a
,Date Here hisen Name and Title of the Oliicer
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fi personally appeared a JYe�
i2 Name(s)ol Signer(s)
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who proved to me on the basis of satisfactory I
evidence to be the persons whose named is/4*
subscribed to the within instrument and acknowledged
to me that he/spt/th*.y executed the same in
his/h�Ek/tr*r authorized capacity(ik), and that by
BARBARA LAMICA
Commission a 1999030 his/h?<fr/tW signature( on the instrument the
a Notary Public -California i personK, or the entity upon behalf of which the
Santa Clara county ' person(,.acted, executed the instrument.
My.Comm.Expires'Dec 20,2016
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
t
WITNESS my hand and official seal.
Signature:
Place Notary Seal Above Signature of Notary Public.
OPTIONAL
Though the information below is not required by law, it may provevaluable to persons relying on the document
and could prevent fraudulent,remova6and reatta9hmentofthis form to`anothe`r docum(int.
Description of Attached Document
I - r Type of Document: - I
t Document D - Number of Pages: ;
11 Signers) Other Than Na Above:
Capacity(ies) Claimed by Si r(s)
Signer's.Name: Signer's Name:
❑ Corporate Officer — Title(s):. ❑Corporate Officer — Title(s): R
❑ Individual - _.• La'i ividual
❑ Partner — ❑ Limited ❑General Too of thumb here ❑ Pa ❑Limited ❑General Top of )
❑ Attorney in Fact ❑.Attorney in ytl
❑ Trustee- Cf Trustee �,'
❑ Guardian or Conservator ❑Guardian or Conservator 3'
fi ❑ Other: ❑Other: I
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Signer Is Representing: Signer'Is Representing: I
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20f 0 National Notary Association�NationalNOtary.or9�1-90n-US NOTAHV'(1-800=9]&fia:p) lean#5907
CALIFORNIA ALL-PURPOSE ACKNOMMEDGMENT
State of'Califomra
County of� a �t
On t before me C
Date V P,. Here Insert Name and Ttle of e O
personally appeared
Name(s)of Signer(s)
who proved to me on the basis of satisfactory evidence to
GRACE SCHMIDT be the person(K) whose,name(.) is/ap5 subscribed to the
Commission t 1923161 within instrument and acknowledged to me that
Rotary Public-California = he/sVt/tVy executed the same in his/t3dr/t)a'eir authorized
Santa Clara County ' capacity(is), and that by his/he(r/pleirsignature(8) on the
Camm. IreaFa621,2015 instrument the personk6), or the entity upon ,behalf of
which the person(Z) acted, executed the instrument.
I certi y under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hand and official
C se l.
Signature /A"(
Place Notary Seal Above ure of
�
Notary Public
OPTIONAL
Though the information,below is not required by law;it may prole valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this dorm to another document.
Description of•Attached Docume t
Title or Type of Document:
ryl/ X-11\1 Document Date: 1Y W - k •7 , -),3 L / (-.Lo��•
-1 Number.of Pages: U
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Signer's Name:
❑ Individual ❑ Individual
❑ Corporate Officer—Title(s)1 ❑ Corporate Officer—Title(s):
,❑ Partner—❑ Limited ❑ General ❑ Partner—❑ Limited ❑ General
El Attorney in Fact OEM ❑ Attorney in Fact
L-1 Trustee
Top of thumb here Top.of thumb here
❑Tr ustee
❑ Guardian or Conservator El Guardian or Conservator
❑ Other: El Other:
Signer Is Representing: Signer Is Representing:
®2001Nabonal Notary Association-9350De5oto A6e:,R0:Bm2402•Chatsw th CA9131:1-2402 w NationalNotaryorg, IIem45907 Reorder Call Tall-Free T-800-8]6:682]
Exhibit A
SCHEDULE OF BONDS, FEES,AND DEPOSITS
Street'I m provementf Category:
PART'A. Faithful Performance Bond:
110-2211 $2;000;000.00
PART B. Labor and Material Bond:
110-2211 $2,000,000:00
PART C. Checking and Inspection Fee:
110-4538 $120;000:00
PART D. Development Maintenance Deposit:
110-2211 $3,000.00 (PAID)
PART E. Storm.Drainage Fee- Basin 3
215-4073 $146`,097.00
PART F. Street Light-One-year Fower Cost:
110-4537 NA
PART G. Map Checking Fee:
110-4539 $8;574.00-(RAID)
PART H. Park Fee: Zone III.
280-4083 NA
PART I. Reimbursement Fee
NA
PART. Parking Conversion Fund (Project Condition 29)
110-2211 $450,000
PART K. Traff ic-Mitigation.@:Homestead & Lawrence.(Project Condition 87)
1-10-221-1 $400;000
PART L. Traffic,Calming (Project,Condit_ion 93)
110-2211 $100;000
PART M: Emergency Vehicle Preemption Fund (Project Condition 94)
$15,000
PART N. Creek Trail Improvements (Project Condition 49)
110-2211 $65,000
PART 0. Park Bond (Project Condition 25)
110-2211 $1,125;000
Page.l2 of12
Bond NO. 106019635
Exhibit B
Annual Premium$'23',600.00
,
Id' '
CUPEl TIINO
FAITHFUL'PERFORMANCEAAND COMPLETION'IMPROV)?MENT BOND
KNOW ALL MEN BY THESE PRESENTS:
Thatwe, Devcon Construction, Inc.
.as Principab•and Travelers Casualty and Surety_Company of America..
as Surety are held and fimily bound unto the City of Cupertino, State of California, in the sum of
Two million dollars and no/100--------------------------------Dollars ($ 2,600,o9o,..00'--1 we bind t
ourselves,out heirs,executors,successors;and,assigns,johitly and severally, firmly by these presents.
THE CONDITION of the foregoing obligation is such that,
WHEREAS, said Principal will perfonn all necessary improvements relative to
Subdivision Agreement for Main Street Cupertino (Public Works File ):52,525..09)
located NortFwest oorner of Stevons'Creek:Blvd.vraniau Avenue. in accordance with the approvedJuiproyement
plans prepo 1 by Sandis Civil'Endlneers
Civil Engineer on,file in,the Engineer's
Office;City of Cupertino,and incorporated herein by reference:
WHEREAS,improvements shall be completed within cne(1)year from chordate of acceptance of this.bond
by the City Council
WHEREAS improvements shall be maintained for a period of at least one (1) year after acceptance of
construction by the City. This bond shall be in full force and effect through the period of maintenanceas providedin
said contract The maintenance period shall continue until such lime that all deficiencies of construction are corrected
II tothcsatisfaction of the,City Engineers Office.
WHEREAS, Principal and Surety shall be responsible for any and allydamages,arising under the original
contract.
NOW THEREFORE, if the said Principal shall well and truly do and perform all the covenants and
obligations as setforlh:above, on its part to be.done and performed at the time and in the manner specified therein,
then this obligation shaltbo'nullandvoid,,otherwise;this bond s'nnll remain in full forceand effect.
In witness whereof, this instrument has been duly execu y the rincipal and Surety•Us loth �day.of
March 120 14 `
Deaf n C ns Inc., I
(To be signed by principal and Surety.. �
Notary Aclulowledgcments required.) Prini ipal
Trayelers Casualt and Surety Company of, 'America.
Surety ` �
By: .;.J
.Attorney-in- et nand"ela mosunlc
The above bond is accepted and approved this day of..20
i
' I
i.
214100
i
Exhibit l Bond No. 106019635
Premium included in the
•
Performance Bond
OWN
CUPEkTINO
LABOR AND MATERIAL BOND FOR SU13DIVISION IMPROVEMENTS
Recitals
1, The City of Cupertino, California, and Devcon Couatruction, Inc.
(heieindler referred to as "Principal", Have entered Into an agreement whereby Principal agrees to
install and complete certain designated public improvements,,dated , 20. and
identified.as part or is incorporated by this reference as if set forth in full;and,
j *Subdivision Agreement" for Main Street Cupertino (Public WOrke Rile 1152,525_09)
2, Pursuant to tho,agreenient,Principal;is required, before commencing performance of the
work, to file a good and sufficient payment bond with the City of Cupertino to secure any claims
brought under Title 15,Division 3,Part'4 of the Civil Code(commencing with Section 3082).
NOW THEREFORE, the Principal and the undersigned as corporate surety (hercinaftex,
.referred to as "Surety") their heirs; successors, assigwi, executors and administrators, jointly and
severally are held bound, unto die City of Cupertino and all contractors, subcontractors, laborers;
nlaterialmen and other persons employed do the performanoc of the agreement and refereed in the
aforementioned Civil Code in the sum of Two mill ion dollaro----.- -- ----- ----` `----
dollars'($2-000,000-00 for materials furnished or labor thereon of any ldnd,.or for amounts due under
the Unemploymentlnsuranco,Act with respect tmsuch work or labor,that the,surety Will pay the.same
In an amount not exceeding the amount horeinabove set forth;and also in case'suit is brought+apon.this
bond, will pay,. in addition to the face amount thereof, costs and reasonable expenses and fees,
i including reasonable attorney's fees, incurred by the Cite of Cupertino imsuccessfully enforcing such
obligation, to be•awarded andfxed by the court, and to be taxed as costs and to be Imluded in the
judgementtherein rendered.
It is Hereby expressly stipulated and agreed that this bond shall inure to the benefit of ally-wid
all persons, companies and corporations entitled to file claims under Title 15 (commencing with
Section 3082) of Part,4 of Division 3 of the Civil Code, so as to.give a right of action to them or Choir
assigns In any sulthroughtupbn this bond.
Should the,conditiunof,tbis bond'ho fully performed,then this obligation shall become null.and
void,otherwise,it;shall be:imd remain in full force and ef.ect.
The surety hcrebystipulated aiid agrees;that no change, extension of time, alteration or addition
to the terms ofsa id-agreement'or the specificadons accompanyirigthe same shall;in any manner, affect
Its obligations on°this bond, and it doe's hereby waive no-ice of any such;change, extension, alteration
or addition.
2/4/00
IN WITNESS WHEREOF, this'instrument has been duly executed by the Principal•and Surety
this loth day of March 20 14
(To be signed by Principal and Surety. Devccn c r, r2/ 'on, Inc.
Notaty Acknowledgements required.) Princi at
By — / _-
'rr, COmaany of America
Surety _
By: (�R�
D e,la. M-os nic, Attorney-in-Fact
APPRO ED AST P,
The above bond is hereby accepted and approved this_, day of 20T,.
CITY OF CUPERTINO
By.
i
i
I
I
2/4!00
,NO FEE"
City of Cupertino
CERTIFICATE OF ACCEPTANCE is hereby given in order to comply with the
provisions of Section 27383 of the Government.Code.
This is to certify that the subdivision�agreement with
Main Street Cupertino
and the City of Cupertino, a governmental agency is hereby accepted by the City of Cupertino on
March'31, 2014, and the grantee consents'to recordation thereof by its duly authorized officer.
Dated: April 1, 2014
By: 0
Andrea sanders
City Clerk's