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CC 10-01-01· AGENDA CUPERTINO CITY COUNCIL ~ REGULAR MEETING CUPERTINO REDEVELOPMENT AGENCY ~ REGULAR MEETING 10300 Torre Avenue, City Hall Council Chamber Monday, October 1, 2001 6:45 p.m. CITY COUNCIL MEETING PLEDGE OF ALLEGIANCE ROLL CALL CEREMONIAL MATTERS - PRESENTATIONS 1. Proclamation for Ann Anger in recognition of her contribution to the quality of life in the Monta Vista neighborhood. POSTPONEMENTS WRITTEN COMMUNICATIONS ORAL COMMUNICATIONS This portion of the meeting is reserved for persons wishing to address thc council on any matter not on the agenda. Speakers are limited to three (3) minutes. In most cases, State law will prohibit thc council from making any decisions with respect to a matter not listcd on the agenda. CONSENT CALENDAR Unless there are separate discussions and/or actions requested by council, staff or a meraber of the public, it is requested that items under the Consent Calendar be acted on simultaneously. 2. Approval of minutes, August 21 and September 17. 3. Accounts Payable, September 14 and 21, Resolution Nos. ~ and 01-209. 4. Payroll, September 28, Resolution No. 01-210. 5. Adopt the Conflict of Interest Code for officials and designated employees, Resolution No. 01-211. 6. Improvement Agreement, Approving Final Map, and Improvement Plans, Stevens Creek Investors, Inc. a California Corporation (Tra Vigne Village and Plaza), APN 316-21-029, Resolution No. 01-212. October 1, 2001 Cupertino City Council & Page 4 Cupertino Redevelopment Agency Santa Clara County Emergency Preparedness Commission Teen Task Force West Valley Mayors and City Managers Vice-Mayor Lowenthal: Animal Control ~PA Association of Bay Area Governments Cupertino Audit Committee Economic Development Team Environmental Review Committee Santa Clara County Cities Association - Alternate Santa Clara County Committee on Housing and Community Development Block Grant Program - Alternate Santa Clara County Library District JPA Board of Direetors Santa Clara County Transportation Agency Policy Advisory Committee - Alternate Teen Task Force - Alternate West Valley Mayors and City Managers - Alternate Councilmember Burnett: ABAG Board of Directors, Santa Clara County Cities Association Representative North Central Flood Control Zone Advisory Committee Northwest Flood Control Zone Advisory Committee Public Dialog Liaison Santa Clara County Committee on Housing & Community Development Block Grant Program Santa Clara County Library District JPA Board of Directors - Alternate Santa Clara County Solid Waste Commission - North County representative Santa Clara County Transportation Agency Policy Advisory Committee Santa Clara Valley Water Commission Councilmember Chang: Association of Bay Area Governments - Alternate Leadership Cupertino Legislative Review Committee Library Steering Committee Public Dialog Liaison Santa Clara County Emergency Preparedness Commission - Alternate Sister City Committee - Toyokawa CLOSED SESSION ADJOURNMENT Adjourn to October 15 at $:30 p.m. for interviews of candidates for Cupertino Youth 'Commission. October 1, 2001 Cupertino City Council & Page Cupertino Redevelopment Agency REDEVELOPMENT AGENCY MEETING Canceled for lack of business. Request to Study Alternate Alignments for Study Area D In that the Stevens Creek Trail Task Force has stated that it has no authority to deviate from predefined alignments in performing its studies, this petition and presentation requests that the City Council of Cupertino direct the Task Force to study alternate alignments. 9/8/01 Request to Study Alternate Alignments for Study Area D · The signers of the referenced petition support the concept of the Stevens Creek Trail, · We also have serious concerns about the fact that the only alignments in Study Area D go through Blackberry Farm, along environmentally sensitive portions of Stevens Creek, and adjacent to private homes, · The in-stream, creek bank, streamside and flood plain areas of the Stevens Creek corridor through Cupertino contain unique, sensitive, and fragile environmental, historical, and geological resources which would be , damaged by the construction and operation of a public thoroughfare, 2 Request to Study Alternate Alignments for Study Area D · The homeowners along the Stevens Creek corridor within Cupertino would face impacts to the safety, privacy, and security of their homes and families, to the seeing and character of their neighborhoods, and to the value and enjoyment of their properties from the construction and operation of a major multipurpose regional trail. · Because of this, we request that alternate alignments be considered for Study Area D. · The alternate alignments that we are asking to be considered are consistent with those recommended by the Sunnyvale and Los Altos City Councils for the Stevens Creek Trail. 9/8/01 3 Petition We, the undersigned citizens of Cupertino, request the City to include in the feasibility study of Stevens Creek Trail additional surface street and alternate routes which will reduce negative impacts on nearby residences. Current proposals to extend a regional hiking, bicycling, and multi-use throughway from Rancho San Antonio Park to Stevens Creek Park envision using land adjacent to the banks of Stevens Creek. Homeowners along the Stevens Creek corridor would face impacts to the safety, security, and privacy of their homes and families. While recreational amenities are desirable in a community, routing a trail through the creek corridor also threatens the sensitive and fragile environmental and historical resources of the area. Due to the extent of urban development along similar stretches of the creek, the Cities of l Jos Altos and Sunnyvale have already determined that the trail should not be constructed adjacent to or on private property, and that the needs of the regional trail system could be satisfied using existing surface streets. 9/8/01 4 Petition Summary 141 people have signed the petition. There was time to contact only a limited number of homeowners in the neighborhood, but almost everyone contacted signed. 9/30/01 5 Sunnyvale City Council Action On November 29, 1994, the Sunnyvale City Council unanimously approved the following resolution: "The City Council determines that a regional trail connection within the Stevens Creek corridor in Sunnyvale is not feasible and should not be constructed along the creek corridor on the Sunnyvale side and directs staff to coordinate with neighboring jurisdictions on determining potential street trail alignments between the City of Mountain View and the City of Cupertino to insure a regional trail connection." 9/8/01 6 Issues Raised During Sunnyvale Study (No. 94-570) · Safety and security General concerns that a creekside trail would increase the numbers or occurrences of transients, vandalism, crime, trash, drug dealers, fire, etc and would put landowners in a vulnerable spot. · Rights of creekside property owners It was noted that those who invested in [the] area did so because of the natural setting and location and paid a premium for it. · Costs and liability ... concerns regarding liability and lawsuits were raised. · Environmental constraints Stevens Creek is a fragile, interdependent corridor ..... 7 Excerpts From The Report to the Mayor and City Council of Sunnyvale (~o. 94-570) G. Conclusions 2. Various studies have shown other trail developments throughout the county may enhance a community and/or region, but may also present trail conflicts between regional users, non-recreational users and adjacent property owners ............ 3. Residential development and other urban growth have greatly limited the ability to implement a multi- purpose trail corridor as originally contemplated in 1961 along the Stevens Creek corridor. 9. A regional trail connection could be implemented by using surface streets in areas where the trail may not be feasible within the creek corridor ............. 8 Los Altos City Council Action On July 26, 1994, the Los Altos city council unanimously approved a Parks and Recreation Commission report dated July 22, 1994, recommending that the Council support a possible link to the Stevens Creek Trail, but that no trail be allowed in the Stevens Creek Corridor directly adjacent to on on private property. ...drawbacks to allowing construction of the trail along the creek included liability, maintenance costs, and security impacts. 9/8/01 9 Parking Issues At a previous meeting of the Trail Task Force, it was stated that three parking spaces would be added in the area of the Blue Pheasant to accommodate Trail users. Given the anticipated demand for trail access, more realistic alternatives will need to be provided, but without negatively impacting residents along the trail corridor. As a point of reference, the following pictures were taken on a Sunday morning at the four parking lots now available at Rancho San Antonio. Rancho San Antonio Parking Lot 9/8/01 1 1 Rancho San Antonio Parking Lot 9/8/01 12 Rancho San Antonio Parking Lot 13 Rancho San Antonio Parking Lot 14 Rancho San Antonio Parking Lot 9/8/01 15 Alternate Alignment # 1 Linda Vista Drive (Study Area C) to [Hyannisport / Linda Vista Drive OR Rae Lane] to McClellan Road Foothill Boulevard, to Stevens Creek Boulevard, them joining the current alignment to Rancho San Antonio (Study Area A) 16 Alternate Alignment #1 Map Alternate Alignment #2 Stevens Canyon Park Study Area to Hanson Permanente Quarry, to Union Pacific right of way, to the PG&E substation near Majestic Oak and English Oak Way, there joining the current alignment to Rancho San Antonio (Study Area A) 9/8/01 18 Alternate Alignment ~2 Map Alternate Alignment #3 This alignment should be considered if a contemplated widening and improvement to Stevens Canyon Road is pursued, Stevens Canyon Park to Stevens Canyon ROad, to Foothill Boulevard, them joining the current alignment to Rancho San Antonio (Study Area A) This is our preferred choice. There is no residential impact, it provides access to Stevens Canyon Park and Rancho San Antonio, and many bicyclists already use Foothill Boulevard, 20 Alternate Alignment #3 Map 0~001 I~.l~Clueut~orfl, Ir~_~; 0~001 N~latbn Te(3hnoloci 9t~o~ 21 Summary (1/2) · The property owners in the Blackberry Farm area in general support the concept of a regional trail · However, experience in the neighborhood in recent years has shown that them are problems with vandalism, trash, and noise when after-hours access is allowed to the Blackberry Farm premises. The trail would allow 24 hour access to Blackberry Farm. · Them are concerns with security and legal liability even if the trail is closed at night. · When the homeowners adjacent to Blackberry Farm purchased their property, them was no mention of the possibility of such a public trail in their backyards. 22 Summary (2/2) · Forcing through a such an intrusive change without the consent to the affected homeowners raises the possibility of litigation. · It is possible to achieve the goals of the bay to ocean trail without infringing on the rights of the property owners next to Blackberry Farm. · The City Councils of Sunnyvale and Los Altos recognized this by approving only street trail alignments. · Unless alternate alignments are seriously considered, the trail study must be considered seriously flawed and the conclusions to be pre-determined. 23 Conclusion Over a hundred Cupertino residents and families feel that their reasonable concerns have been disregarded in the rush of the Task Force and the Consultant to implement a pm-determined conclusion to mute the trail through Cupertino alongside Stevens Creek. We are taking this extra-ordinary step to address the Council directly and request that you authorize and direct the Stevens Creek Trail Task Force and Consultant to evaluate these alternative routes to the same level as the current proposals before any further decisions or recommendations are made in Study Areas D and C. 24 .' Or~ We, the undersigned citizens of Cupertino, request the City to include in the feasibility study of Stevens Creek Trail additional surface street and alternate routes which will reduce negative impacts on nearby residences. Current proposals to extend a regional hiking, bicycling, and multi-use throughway from Rancho San Antonio Park to Stevens Creek Park envision using land adjacent to the banks of Stevens Creek. Homeowners along the Stevens Creek corridor would face impacts to the safety, security, and privacy of their homes and families. 'While recreational amenities are desirable in a community, routing a trail through the creek corridor also threatens the sensitive and fragile environmental and historical resources of the area. Due to the extent of urban development along similar stretches of the creek, the Cities of Los Altos and Sunnyvale have already determined that the trail should not be constructed adjacent to or on private property, and that the needs of the regional trail system could be satisfied using existing surface streets. Name(Print, I~" ~' ~.-~"'J ~' ~/E-5' Sign: '~ ~/~ ~ Date: Name (Print) &~O i ~.. ~LI t~2-O~'~* Sign: . Date: Name (Prlnt),,,~_~ ~ "~/~ ' Sign: ~ Date: ~/~/O Name,Print) K~"'~ ~N,l"~'Tfif' Sign:~l~...~~. ' -te:-Z/"/Da /~[. Name(Print, ~ {Iq..~ ~l'l~t~ Sign~ Date: Address: lo t,a . c tc , . Name (Print) J~ ~ ~'~u~''~ 1 Sign.~/~ ~-'"'"'~Date: Address: to ~3.~. S(..%~tc cts.4: ~- ~, .[j/~ CFr · ~ ~-o(~( Name(Print) ~ ~J~'tL[(~{ · Sign:/_.~~ Date:~,/Cl,[O 1 .. '~, ...... Date: \i ' ~. · Address: , ~ " .+ ~.' ~, \'- ~":.' '~ '," ; ' Name <Print) ~' ~3/, Aj Name,Print) Name(Print) Name (Print) Name <Pdn,, Address: IO~ Name(Print) Address: ~0~ Name(Print) Name (P~int)~ ~ ~ Name(Print) Address: Name(Print) Name (Print) ~'t" ~ 2 We, the undersigned citizens of Cupertino, request thc City to include in the feasibility study of stevens Creek Trail additional surface ~treet and alternate routes which will reduce negative impacts on nearby residences. Current proposals to extend a regional hiki~4~ bicycling, and multi-use throul~hway from Rancho San Antonio Park to Steve~ Creek Park envision using land adjacent to the banks of Stevens Creek. Homeowners along the Stevens Creek corridor would face impacts to the saf~y, security, and privacy of their homes and families. While recreational amenities are desirable in a community, routh~g a trail through the orcek corridor also threatens the sensitive and fragile environmental and historical resources of the area. Due to the extent of urban development along similar stretches of the creek, the Cities of Los Altos and Sunnyvale have already determined that the trail should not be constructed adjacent to or on private property, and that the needs of the regional trail system could be satisfied using existin8 surface streets. ~,~: ~o/~// /Aa,-. cr~_~'-'D,- ~~o ;....- Name (Print) C//4~.F ,~'c~'mq vI $1~n'~'~r.~ ~~,t4,' ~ate: ~'{~- ~./ Name(Print) T'~o~ ~u*~x::~ 8,gn:%/~o.~,-._ Date: Name CPrint) 6'/~_,~'Lp &X," Sign: g', Oate: Name (Print) ..J-'q ,.,, c h ,., Sign: "' _ --,- oate: ?/'r/,:. / Name(Print) PLId~. ,.~'~.,~ ~t~ Sign: ~ ~d~~'~ Date: We, the undersigned citizens of Cupertino, request the City to include in the feasibility study of stevens Creek Trail additional surface street and alternate routes which will reduce ne~tive impacts on nearby residences. Current proposals to extend a regional hikin~ bicyclio~, and multi-use throughway from Rancho San Antonio Park to Stevens Creek Park envision using land adjacent to the banks of Stevens Creek. Homeowners along the Stevens Creek corridor would face impacts to the safety, security, and privacy of their homes and families. While recreational amenities are desirable in a community, routing a trail through the creek corridor also threatens the sensitive and fraiile environmental and historical resources of the area. Due to the extent of urban development along similar stretches of the creek, the Cities of Los Altos and Sunnyvale have already determined that the trail should not be constructed adjacent to or on private property, and that the needs of the regional trail system could be satisfied using existing surface streets. Name (Print) Sign: Date: Address: Name (Print) Sign: Date: Address: Name (Print) Sign: Date: Address: Name (Print) Sign: Date: Address: Name (Print) Sign: Date: Address: Name (Print) Sign: Date: Address: Name (Print) Sign: Date: Address: Name (Pdnt) Sign: Date; Address: Name (Print) Sign: Date: Address: We, the undersigned citizens of Cupertino, r~luest the City to include in the feas~ility study of stevens Creek Trail additional surface street and alt~,~atz routes which will reduce negative impacts on nearby residences. Curr~ proposals to cxtc~xl a regional hiki,,g, bicycling, and multi-use throul~way from Rancho San Antonio Park to Stevens Creek Park envision us;r,~ land adjacent to the banks of Stomas Creek. Homeowners along the Stevens Creek corridor would face impacts to the safety, security, and privacy of their homes and families. While recreational amenities are desirable in a commuK~y, muting a lrail through the creek ~orridor also threatens the sensitive and fragile ~nviroumental and hi.<otical resources of~_~ area. Due to the extent of urban development along similar stretches of the creek the Cities of Los Altos and Sunnyvale have already d~t~mined that the trail should not be constructed adjac~ to or on private prop~y, and that the ne~ds of the regional trail N..~.(P,.o I~1~.~ ;,~,~ '~k- ~,: ,~ o~ ~li'/Ol . ~: 'loVoo ~,,,~' 8(~J.~q,~ .cA ?,,,'-oM' . ,~.. /oz~ S',-,,.._, ..- BI,, 4 '~/ c ~ ,,,..o ~ ~s'-w~. ,~r~: t0~.,~ ,Yt"e~c_ '~. ¢~e'~:r-/ar~ ccc We, the undersigned citizens of Cupertino, request the City to include in the feas~ility study.of Stevens Creek Trail additional surface street and alternate mutes which will reduce negative impacts on nearby r~sid~nccs. Cku-rent proposals to extend a regional hi'lng, bicycling, and multi-use throughway f~om Ra~h~ San Antonio Park to Stevens Creek Park envision usln~ land adjacent to the banks of Stevens Creek. Homeown¢i~ along the Stevens Cr~k corridor would face impacts to the safety, security, and privacy of their i~mes and families. While recreational amonlties are desirable a community, romlng a trail through the creek corridor also threatens the sensitive and fi~gile environmental and historical resources of the are~ Due to the exten~ of urban development along similar stretches of the creel the Cities of Los Altos and Surmyvale have already d~t~,,~ned that the trail should not be converto'ted adjacent to or on private property, a~that the needs of the regional trail 7 L / ×. Na.~ (Pflnt) S~n: ' ~ Name OOrint) Sign: Date: Name (Print) Sign: Date: Name (Pdnt) Sign: Date: Name (Print) Sign: Oate: Name (Pdnt) Sign: ' [:late: Name (Print) Sign: Date: Name (Print) Sign: Date: Name (Print) Sign: Date: We, the undersigned citizens of Cupertino, request the City to include in the feasibility study of Stevens Creek Trail additional surface street and alternate mutes which will reduce negative impacts on nearby residences. Current proposals to extend a regional hiking, bicycling, and multi-use throughway from Rancho San Antonio Park to Stevens Creek Park envision using land adjacent to the banks of Stevens Creek. Homeowners along the Stevens Creek corridor would face impacts to the safety, security, and privacy of their homes and families. While recreational amenities are desirable in a community, muting a trail through the creek corridor also threatens the sensitive and fragile environmental and historical resources of the area. Due to the extent of urban development along similar stretches of the creek, the Cities of Los Altos and Sunnyvale have already determined that the h-~il should not be coroUacted adjacent to or on private prol~and that the needs of the regional trail system could be satisfied using existing s~[ Address: $~.~zl~ ~ ~e.r, Co~'~,,ao C,~ Ad,,..: c:/--' Name (Prir~ /.--~' C/'~>~"c-'ZZS'---' Sign' ~..A~..,¢-.~-~-~'. ,~te: ~/'f'ff/~,'/. ~.~,~,i_ _ :Z' '~-~ -"- - ._, ...... Address: ' ' . !, -. ,..' I.q ~ ,'~ ~ r~x .~ .~,-.. , ,~ .i ~ f"/,, , ~ ,~-,-~. '~-, ...... The Cupertino City Council is considering building new hiking and recreational trails, which would be part of a 50 mile long Bay to Ocean trail. The prOposals include expanding hiking, bicycling, and equestrian trails in Rancho San Antonio and Stevens Creek Park. It is also proposed that the Stevens Creek Park and Rancho San Antonio trails be linked by a new trail running along the banks of Stevens Creek through Blackberry Farm. Homeowners in this area are concerned about security and privacy (the proposed route adjoins some of their back yards, and Blackberry Farm would be accessible 24 hours a day, 365 days a year, via the new trail) We are also concerned about the costs of building and maintaining such a trail through Blackberry Farm, and the affects of large numbers of hikers on the fragile environment of Stevens Creek in that area. Because of these concerns, we are requesting that routes other than through Blackberry Farm be considered as part of the feasibility study. We do not oppose the Stevens Creek Trail. We are only asking that alternate routes be studied, in addition to the current route. through Blackberry Farm. We, the undersigned citizens of Cupertino, request the City to include in the feasibility study of Stevens Creek Trail additional surface street and alternate mutes which will reduce negative impacts on nearby residences. Current proposals to extend a regional biking, bicyclin~ and multi-urn throughway from Rancho San Antonio Park to Stevens Creek Park envision nsing land adjacent to the banks of Stevem Creek. Homeowners along the Stevens Creek corridor would face impacts to the safety, security, and privacy of their homes and families. While recreational amenities are desirable in a community, muting a trail through the creek corridor also threatens the sensitive and fragile environmental and historical resources of the area. Due to the extent of urban development along similar stretches of the creek, the Cities of Los Altos and Sunnyvale have already determined that the trail should not be coz~h acted adjacent to or on private PrOl~ty, and t~at the nexis of the regional trail system could be satisfied nsing existing surface sleets. Name (Pdnt)'~--------~ b~,~'v'- ~ o W 0,1/. Sign: Date: Address: 2 ~- ~ ~ 6 ~h ~ ~r~J Q'T 0.44.rPE~TI ~dO / 4" ~4 Name (print) J~.E'00~:=[- ~o ml~v'~ Sign/~ ~u~..~.~__~'~Y~) % D':~ Address: 100'~0 ~ c.-~__.~J' I.~.~ J~::~-,~ C~)'~fl~T'It'Jc3)'C-~ The Cupertino City Council is considering building new hiking and recreational trails, which would be part ora 50 mile long Bay to Ocean trail. The proposals include expanding hiking, bicycling, and equestrian trails in Rancho San Antonio and Stevens Creek Park. It is also proposed that the Stevens Creek Park and Rancho San Antonio trails be linked by a new trail running along the banks of Stevens Creek through Blackberry Farm. Homeowners in this area are concerned about security and privacy (the proposed route adjoins some of their back yards, and Blackberry Farm would be accessible 24 hours a day, 365 days a year, via the new trail) We are also concerned about the costs of building and maintaining such a trail through Blackberry Farm, and the affects of large numbers of hikers on the fragile environment of Stevens Creek in'. that area. Because of these concerns, we are requesting that routes other than through Blackberry Farm be considered as part of the feasibility study. We do not oppose the Stevens Creek Trail. We are only asking that alternate routes be studied, in addition to the current route through Blackberry Farm. We, the undersigned citizens of Cupertino, request the City to include in the feasibility study of Stevens Creek Trail additional surface street and alternate mutes which will reduce negative impacts on nearby residences. Current proposals to extend a regional hiking, bicycling and multi-use throughway from Rancho San Antonio Park to Stevens Creek Park envision using land adjacent to the banks of Stevens Creek. Homeowners along the Stevens Creek corridor would face impacts to the safety, security, and privacy of their homes and families. Vfnile recreational amenities are desirable in a community, routing a trail through the creek corridor also threatens the semitive and fragile environmental and historical resources of the area. Due to the extent of urban development along similar stretches of the creek, the Cities of Los Altos and Sunnyvale have already determined that the trail should not be constructed adjacent to or on private, property, and that the needs of the regional trail system could be satisfied using existing surface streets. Name (Pdnt) Sign~ Date: Address: Name (Print) Sign: Date: Address: Name (Print) Sign: Date: A~ldress: Name (Print) Sign: Date: Address: Name (Print) Sign: Date: Address: Name (Print) Sign: Date: Address: Name (Pdnt) Sign: Date: Address: Name (Pdnt) Sign: Date: Address: The Cupertino City Council is cOnsidering building new hiking and recreational trails, which would be part of a 50 mile long Bay to Ocean trail. 'The proposals include expanding hiking, bicycling, and equestrian trails in Rancho San Antonio and Stevens Creek Park. It is also proposed that the Stevens Creek Park and Rancho San Antonio trails be linked by a new trail running along the banks of Stevens Creek through Blackberry Farm. Homeowners in this area are concerned about security and privacy (the proposed route adjoins some of their back yards, and Blackberry Farm would be accessible 24 hours a day, 365 days a year, via the new trail) We are also concerned about the costs of building and maintaining such a trail through Blackberry Farm, and the affects of large numbers of hikers on the fragile environment of Stevens Creek in that area. Because of these concerns, we are requesting that routes other than through Blackberry Farm be considered as part of the feasibility study. We do not oppose the Stevens Creek Trail. We are only asking that alternate routes be studied, in addition to the current route through Blackberry Farm. We, the undersigned citizens of Cupertino, request the City to include in the feasibility study of Stevens Creek Trail additional surface street and alternate routes which will reduce negative impacts on nearby residences. C~t proposals to extend a regional hiking, bicycling, and multi-use throughway from Rancho San Antonio Park to Stevens Creek Park envision using land adjacent to the banks of Stevens Creek. Homeowners along the Stevens Creek corridor would face impacts to the safety, security, and privacy of their homes and families. While recreational amenities are desirable in a community, routing a trail through the creek corridor also threatens the sensitive and fragile environmental and histoficai resources of the area. Due to the extent of urban development along similar stretches oftbe creek, the Cities of Los Altos and Sunnyvale have already determined that the trail should not be constructed adjacent to or on private property, and that the needs of the regional trail system could be satisfied using existing surface streets. Address: Z1'15 2-- ~,VOoDt~L(~Y Dp... Cqlm~-[¢~6 ^,,,,,: /, ,~/,//,,f~, x.r ~,. ~,;,.~,.~. ~ ~*' ,~ . Name ,Print)/~l¢~ /~,~.~'-~ Sign.~i~.~ Date: Address: ~.Z.~T-=.~,2~..,~_.~be,~..r n~/-~-,,..~ C-/ Add.ss:Name (Print) ~[ 0 ?2/~'('/al/! ~~ ~ Sign: ~~ q,J"'~ ! vDate: fi,.,,t s,o,,: . Name(Print),~.~Y' P/',~/'t~'~ Sign: ~.'~~' Date: ~/1~'~>//, We, the undersigned citizens of Cupertino, request the City to include in the feasibility study of Stevens Creek Trail additional surface street and alternate routes which will reduce negative impacts on nearby residences. Current proposals to extend a regional hiking, bicycling, and multi-use throughway fi'om Rancho San Antonio Park to Stevens Creek Park envision using land adjacent to the banks of Stevens Creek. Homeowners along the Stevens Creek corridor would face impacts to the safety, security, and privacy of their homes and families. While recreational amenities are desirable in a community, routing a trail through the creek corridor also threatens the sensitive and fragile environmental and historical resources of the area. Due to the extent of urban development along similar stretches of the creek, the Cities of Los Altos and Sunnyvale have already determined that the trail should not be constructed adjacent to or on private property, and that the needs of the regional trail system could be satisfied using exisTg surface streets~ Address: ~°'el"4~ ~Jqa. t./,~, .~/~..g... ~,~..."~.o ~ Name(Print) t/~'~a-~ ~'~, &/~S, Date: ~"/~" N.me(Pri.t) s,g Date: Address:i,~dr.~tt~LO~.~C..~,~.,~i ~Z.~"~? , ~I~ ~'"~l~ , Name,Print) 'i"'~.~,~/;t~ dl.tvt~? Sign: ~ Date: Name,Print) ~ '~tqtl /c4~1 4 Sign:(~., ~ ~/~ Date: Address: ~)0~-~. fC)d-~/O/)/ L.. C-E- · Name(Print) ~~P LUt, L '~'~;'~ ~ ~' Name(Print) ~-.~'~jv~t'~,.z~tl¥~g~'~,~Sign: ~-~-.~ Date: Address: ~ o~,~\ Lt'~oJ~.~ ~t ~L- ~)~, ~_~. 01/~~ Name,Prin,)~)~ 0~,,,~//~{,~ Sign:I'll' ~, ~~..Date: ?//...~'~/~/. Name,Print) ~/fi~la~\ ~.0, Sign:'0~~~" Date: We, the undersigned citizens of Cupertino, request thc City to include in thc feasibility study of Stevens Creek Trail additional surface street and alternate routes which will reduce negative impacts on nearby residences. Current proposals to extend a regional hiking, bicycling, and multi-use throughway from Rancho San Antonio Park to Stevens Creek Park envision using land adjacent to the banks of Stevens Creek. Homeowners along the Stevens Creek corridor would face impacts to the safety, security, and privacy of their homes and families. While recreational amenities are desirable in a community, muting a trail through the creek corridor also threatens the sensitive and fragile environmental and historical resources of the area. Due to the extent of urban development along similar stretches of the creek, the Cities of Los Altos and Sunnyvale have already determined that the trail should not be constructed adjacent to or on private property, and that the needs of the regional trail system could be satisfied using existing surface streets. Addres.: 21¢o5 oo,tt, u7, fi*: . Name (Print) "~., ~J~/S ~/~ ~(Z Sign: ~ ~. ~'~.¢"xC"C'r4~ Date: ~l/~ / · Address: /~)~ ~,~-4Z~/)~ p~- Name(Print) "T/~A-,~,'~ Sign: ~' ,~ , Date: Address: /CDOI ~IY,~ (../ha ~,~. ~x~-.c~'7 ~/UC~, [4 5 Name(Print) ""'~.,fl,1. p.l,~J~) Sig,n:'"~ ~ f~J Date: Address: '~OJ~.J Name(Prin,){~, O-,c"¢~t.~.~'~.t ~,~ Sign: ~----¢,..-.~,~.~.Z'~.~-,¢ Date: Name(Print) ~'"~-~¢']¢J2' ~ ~ Sign: 9/~j~,. Date: Address: /~l l~! t~l/,¢l L,¢ ~ O.,¢~?.u,,O Name (Print) ,~l~(¢J.,~l~ ~ 1~"~1~/:~ Sign: ~.~.,~..~~ Date: ~/'/cji . V Address: Name,Print) j~flV'i-rJ~ ~--1~ sign: /~'-~ ~ Date: We, the undersigned citizens of Cupertino, request the City to include in the feasibility study of Stevens Creek Trail additional surface street and alternate routes which will reduce negative impacts on nearby residences. Current proposals to extend a regional hiking, bicycling, and multi-use throughway from Rancho San Antonio Park to Stevens Creek Park envision using land adjacent to the banks of Stevens Creek. Homeowners along the Stevens Creek corridor would face impacts to the safety, security, and privacy of their homes and families. While recreational amenities are desirable in a community, routing a trail through the creek corridor also threatens the sensitive and fragile environmental and historical resources of the area. Due to the extent of urban development along similar stretches of the creek, the Cities of Los Altos and Sunnyvale have already determined that the trail should not be constructed adjacent to or on private property, and that the needs of the regional trail system could be satisfied using existing surface streets. Name (Print) H,iJ~¥ I/----o eeC-tJ Sign.L/ .o Date: el/s/U . Add.ss: 101do ~- L~, br CoF~f-T,~'o c~ Name,Print) J~__(l~LO~.r~ sign: ~ Date: Name(Print) ?~7~-~ ~"'~~ Sign: /~~/'~ Date: Name(Print)/.~t'~U~' ~~-~'~0 ,Sign: ~ ~)~Date: ?/'~/~./ We, thc undcrsigned citizens of Cupertino, request the City to include in the feasibility study of Stevens Creek Trail additional surface street and alternate routes which will reduce negative impacts on nearby residences. Currant proposals to extend a regional hiking, bicycling, and multi-usc throughway from Rancho San Antonio Park to Stevens Creek Park envision using land adjacent to the banks of Stevens Creek. Homeowners along the Stevens Creek corridor would face impacts to the safety, security, and privacy of their homes and families. While recreational amenities are desirable in a community, routing a trail through the creek corridor also threatens the sensitive and fragile environmental and historical resources of the area. Due to the extent of urban development along similar stretches of the creek, the Cities of Los Altos and Sunnyvale have already determined that the trail should not be constructed adjacent to or on private property, and that the needs of the regional trail system could be satisfied using existing surface streets. Name(Print) i~..~,~,% ~A~.,t' "'-'~ Sign: ~(~ate: ~-~{~-~.l' Name (Print)'~,M,,'~-- '~,,~t~/Z.~ Sign :'~'~~ ~----'--~ Date: Name(Print, 0~,~,t~ Ht',.f'~' Sign:~df ~_. Date: C'f'/t/~ Name(Print, ~~ /~L{' sign: ~v~]l~'~~ Date: T//6/O Name (Print) / '~!~ ~ S~17:~-~:.5 Date: Name(Print) p~J,-~Ot'~7 /~Of?L//"O" Sign: ~ ~Date: Address: ;;3 .~/_,~-,~ ~ ,~,~[ ~%~--'~"'" Name(Print) :..,'-e. F' (,~[~ Sign: ~, d/~~. Date: We, the undersigned citizens of Cupertino, request the City to include in the feasibility study of Stevens Creek Trail additional surface street and alternate mutes which will reduce negative impacts on nearby residences. Current proposals to extend a regional hiking, bicycling, and multi-use throughway fiom Rancho San Antonio Park to Stevens Creek Park envision using land adjacent.to the banks of Stevens Creek. Homeowners along the Stevens Creek corridor would face impacts to the safety, security, and privacy of their homes and families. While recreational amenities are desirable in a communiw, muting a trail through the creek corridor also threatens the sensitive and fragile environmental and historical resources of the area. Due to the extent of urban development along similar stretches of the creek, the Cities of Los Altos and Sunnyvale have already determined that the trail should not be constructed adjacent to or on private property, and that the needs of thc regional trail system could be satisfied using exists, g surface streets. Name (Print) K 0 y L- ~ L~ ~' Sign: a Address: , 0 ~ ~ q~l I Name (Print.) l~l,f ~1.'~ .~ Sign: ~ Date: 7//0/'/ Name (Print) ~, IN] Oo.~cx.l~ Sign: 'NJ, ~--,,~_.~ Date: q NameCPrin,) [~n.~{~- ~..,~t.~',x Sign: ~.~,~ Date: We, the undersigned citizens of Cupertino, request the City to include in the feasibility study of Stevens Creek Trail additional surface street and altermtte mutes which will reduce negative impacts on nearby residences. Current proposals to extend a regional hiking, bicycling, and multi-me throughway from Rancho San Antonio Park to Stevens Creek Park envision using land adjacent to the banks of Stevens Creek. Homeowners along the Stevens Creek corridor would face impacts to the safety, security, and privacy of their homes and families. While recreational amenities are desirable in a community, routing a trail through the creek corridor also threatens the sensitive and fragile environmental and historical resources of the area. Due to the extent of urban development along similar stretches of the creek, the Cities of Los Altos and Sunnyvale have already determined that the trail should not be constructed adjacent to or on private property, and that the needs of the regional trail system could be satisfied using existing surface streets. Address: o~./~0a do~r~.~e~ f~'~m Ct~.~.~__./~_ Address:-~q--q C~'~(~ e6 ~/1~',~-~.~. .amc,Print) /v~..~ ~,/~/~. 8ign:"~/~"~..-. Da,: Name(Print, l~'~.,~J,..~ '~,.,~L..~ Sign: Add.ss: '1~.~..~[.0PI.t o / Name (Print) J~)~?~. ~,~ :: Sign: ~ ~.~ Date: ~/~/~./ Add,.: 9). Name(Print) ~'/~/?~t~gte~rSign:~~, ! We, the undersigned citizens of Cupertino, request the City to include in ~e feasibility study of Stevens Creek Trail additional surface street and aitemate mutes which will reduce negative impacts on nearby residences. Current proposals to extend a regional hiking, bicycling, and multi-use throughway from Rancho San Antonio Park to Stevens Creek Park envision using land adjacent to the banks of Stevens Creek. Homeowners along the Stevens Creek corridor would face impacts to the safety, security, and privacy of their homes and families. While recreational amenities are desirable in a community, muting a trail through the creek corridor also threatens the sensitive and fragile environmental and historical resources of the area. Due to the extent of urban development along similar stretches of the creek, the Cities of Los Altos and Sunnyvale have already detem-,ined that the trail should not be constructed adjacent to or on private pro~, and that the needs of the regional trail system could be satisfied using existing surface streets. / / ~ ~/ ,~ ~ ... , . , Name (Print) Sign' -- Date' Address: Name (Pdnt) Sign: Date: Address: Name (Print) Sign: Date: Address: Name (Print) Sign: Date: Address: Name (Pdnt) Sign: Date: Address: Name (Print) Sign: Date: Address: Name (Print) Sign: Date: Address: ¢c /~o -l-o/ am#le egolution o£ up#ort for Federal Funding for Cleanup of Mount Umunhum Whereas, the mission oftbc Midpeninsula Regional Open Space Dislrict is to acquire and preserve a regional greenbelt of open space land in perpetuity; protect and restore the natural environment; and provide opportunities for ecologically sensitive public enjoyment and education; and Whereas, in keeping with its mission, the Midpeninsula Regional Open Space District purchased the former Almaden Air Force Station and all of its remaining facilities on Mount Umunhum in 1986 with the intent of restoring the site to a natural condition, and providing for low-intensity public access to this 3,486-foot high peak, the South Bay's sister mountain to Mt. Tamalpais and Mt. Diablo; and Whereas, this purchase was at fu]l Fair Market Value, with no discount for remnant military contamination; and 'Whereas, the District has, over the last 20 years, purchased nearly 200 parcels on and around Mount Umunhum in an effort to preserve the mountain area for open space, environmental, and public recreational opportunities in the Sierra Azul Open Space Preserve; and Whereas, Mount Umunhum and thc District's surrounding Sierra Azul preserve area comprise critical habitat for a number of endangered or special status wildlife species, including the California red-legged frog and the southwestern pond turtle; and these lands also provide important unintc~,apted range for mountain lion, as well as bobcat, deer, coyote, and many other animal species; and Whereas, some 63 plant communities are found on and around Mount Umunhum, along with the headwaters of Guadalupe and Los Gatos Creeks, which provide an important component of the water supply for the Santa Clara Valley; and Whereas, Mount Umunhum offers spectacular panoramic vistas, from Monterey Bay to Mt. Diablo to San Francisco, providing a place of extraordinary perspective for South Bay visitors, only a few miles from San Jose, California, the nation's 11th largest city; and Whereas, the District's studies have found high levels of toxic materials in the abandoned Air Force facilities on Mount Umunhum, including lead, lead-based paint, and asbestos, which have made cleanup and restoration of the site prohibitively expensive for the District to accomplish, and which coupled with decrepit and unsafe structures, have precluded any public access to a significant portion of the area; and Whereas, the Defense Environmental Restoration Program, in its Annual Report to Congress in Fiscal Year 1998, estimated that the Federal government had yet to allocate at least $2.5 million dollars toward completion of thc promised cleanup at the Former Almaden Air Force Station, Now, Therefore Be It Resolved, that the (name of agency or elected body) does hereby support the efforts of the Midpeninsula Regional Open Space Dislrict to obtain Federal funding for clean up of all toxic materials at the former Almaden Air Force Station and, further, urges the local Congressional delegation and thc Federal Gov¢~-aent to appropriate the funding necessary for ~cmoval and cleanup of all b~rdous materials at this site, including not only current below-ground contamination, but also all lead, lead-based paint, and asbestos. This appropriation will make way for returning this area to a spectacular public open space and recreational area. DRAFT MINUTES CUPERTINO CITY COUNCIL Regular Adjourned Meeting Tuesday, August 21, 2001 CALL TO ORDER At 3:00 p.m. Mayor James called the meeting to order in Conference Room C/D, 10300 Torte Avenue, Cupertino, California. ROLL CALL City Council members present: Mayor Sandra James, Vice-Mayor Richard Lowenthal, and Council meiiibers Don Bumett and Michael Chang. Council members absent: None. Staff present: City Manager David Knapp, Administrative Services Director Carol Atwood, Community Development Director Steve Piasecld, Parks and Recreation Director Therese Smith, Public Works Director Ralph Quails, City Attorney Charles Kilian, and City Clerk Kimberly Smith. ORAL COMbIUNICATIONS - None STUDY SESSION 1. Review of budget for new library construction. Administrative Services Director Carol Atwood reviewed the Power Point presentation handout titled, "City Council Study Session Library Funding - Revisited." She said the purpose of the study session was to identify an additional $3 million dollars for a total library building budget of $22 million. The current proposed funding for the library is $10 million in additional debt, $4 million from CIP reserves, and $5 million from the sale of property or debt refinancing, for a total of $19 million. The funding summary review from staff proposals was $1 million from fiscal year 2000/01 savings, $.8 million from debt service reduction and $1.2 million from a "Friends of the Library" community fundraiser for a total of $3 million. Council discussed the appropriate level of reserve, leadership in fund raising, and extending the utility tax. 2. Review of library design alternatives. A letter was distributed by Jean Gallup (Friends of the Cupertino Library and Library Steering Committee), Dorothy Stow (President, Cupertino Library Foundation and Library Steering Committee) and Kathie Mulvey (President, Friends of the Cupertino August 21, 2001 Cupertino City Council Page 2 Library), which urged Council to support placing the new library on the present site of the old library. Cathy Simon, Design Principal architect for the library, described the different library schemes via a Power Point presentation. She explained that the schemes emerged from two community workshops. The "big ideas" were extracted and from those ideas, two design scenarios were formed. She discussed the pros and cons of each. Council discussed the budget and library design alternatives. One alternative would be to build the library adjacent to thc existing building. The other alternative would be to replace the old building with the new library. Council concurred to work with both options and to have the architects come back with additional pluses and minuses in order to decide what would work best for the library and for the whole Town Center feeling in . general. Public Works Director Ralph Quails said that the next library meeting would probably be at the end of September or early October and would include the Council and the community. ADJOURNMENT At 5:00 p.m. the meeting was adjourned. KJmberly Smith, City Clerk DRAFT MINUTES CUPERTINO ciT~ COUNCIL Regular Meeting Monday, September 17, 2001 ROLL CALL At 5:30 p.m. Mayor James called the meeting to order in Conference Room A, 10300 Torte Avenue, Cupertino, California. City Council members present: Mayor Sandra James, Vice-Mayor Richard Lowenthal, and Council members Don Bumett and Michael Chang. Council members absent: None. Staffpresent: City Clerk Kimberly Smith and Deputy City Clerk Grace Johnson. PARKS AND RECREATION COMMISSION INTERVIEWS 1. Interview applicants for an unscheduled vacancy on the Cupertino Parks and Recreation Commission. - Council interviewed Mr. Bradley Tice and Mr. Rodney Brown and watched a pre-taped interview of Mr. John Buenz for this position. Mr. Roduey Brown was appointed to a partial term ending San~xa_ry 2004. RECESS The Council was in recess from 6:15 p.m. to 6:45 p.m. PLEDGE OF ALLEGIANCE At 6:45 p.m. Mayor James called the meeting to order in the Council Chambers, 10300 Torre Avenue, Cupertino, California, and led the Pledge of Allegiance. ROLL CALL City Council members present: Mayor Sandra James, Vice-Mayor Richard Lowenthal, and Council members Don Bumett and Michael Chang. Council members absent: None. Staff present: Acting City Manger Carol Atwood, Comm~tmity Development Director Steve Piasecki, Parks and Recreation Director Therese Smith, Public Works Director Ralph Quails, Public Information Officer Rick Kitson, Senior Planner Vera G-il, City Attorney Charles Kilian, and City Clerk Kimberly Smith. September 17, 2001 Cupertino City Council Page 2 Mayor James called for a moment of silence to remember those who died in the World Trade Center bombings of September 11, 2001. CEREMONIAL MATTERS - PRESENTATIONS POSTPONEMENTS 'WRITTEN COMMUNICATIONS ORAL COMMIJNICATIONS CONSENT CALENDAR Chang moved to approve the items on the Consent Calendar as recommended, with the exception of Nos. 2, 8, and 9 which were pulled for discussion. Lowenthal seconded and the motion carried 4-0. 2. Approval of minutes, August 20. 3. Treasurer's Budget Report - July 2001. 4. Accounts Payable, August 17, 24, 31 and September 7, Resolution Nos. 01-190, 01-191, 01-192 and 01-193. 5. Payroll, August 31 and September 14, Resolution Nos. 01-194 and 01-195. 6. Approve the destruction of records from the Community Development Department files, which are in excess of two years old, Resolution No. 01-196. 7. Amend the Unrepresenl~d Employees' Compensation Program: a). Approval to reallocate one Senior Civil Engineer position in the Public Works Depaxhnent to Senior Architect b). Approval of a $250 monthly automobile allowance for the new classification of Senior Architect, Resolution No. 01-197 8. Authorize application for Roberti-Z'Berg-Harris Block Grant Program funds in the amount of $140,923 and approve local matching funds of $60,396 from the 2000/01 park renovation project for Wilson Park improvements, Resolution No. 01-198. 9. Establish a Teen Commission, Resolution No. 01-199. 10. Approve budget adjustment for the Cupertino Public Library Capital Improvement Project. September 17, 2001 Cupertino City Council Page 3' --' 11. Approve amended and restated Joint Powers Agreement for library services, Resolution No. 01-200. 12. Annexation: Make determinations and approve the reorganization of territory designated "Byrne Avenue 01-05," located on the west side of Byme Avenue between Granada Avenue and Hermosa Avenue; approximately 0.410 acre, Maldonado (APN 357-11-003), Resolution No. 01-201. 13. Improvement Agreement, David Y. F. Pemg, Jenny H. C. Pemg, and Yuen-Chen Pemg, 19327 Calle de Barcelona, APN 375-04-006, Resolution No. 01-202. 14. Authorize Execution of Cooperative Agreement with the City of San Jose to overlay Bollinger Road from Tantau to Miller Avenue and authorize use of funds from Traffic Congestion Relief Fund, Resolution No. 01-203. 15. Authorize Execution of Agreement with Kimley-Hom and Associates, Inc. in the amount of $179,584.00 for the De Anza Boulevard Corridor Advanced Traffic Management System Project, Resolution No. 01-204. 16. Authorize the Public Works Director to award the con~tructinn contract for the Wolfe Road/I-280 Interchange Improvements project to the lowest responsible bidder in an .- amount not to exceed $330,000.00 and approve a construction contingency in the amount of $33,000.00, Resolution No. 01-205. Vote Members of the City Council AYES: Burnett, Chang, James, Lowenthal NOES: None ABSENT: None ABSTAIN: None ITEMS REMOVED FROM THE CONSENT CALENDAR (above) 2. Approval of minutes, August 20. Lowenthal clarified that the minutes of August 20, page number 2-6, item No. 28B should be corrected to read, "Not allow occupancy of the building until the construction is complete." Lowenthal moved to approve the minutes of August 20 as amended. Burnett seconded and the motion carried 4-0. 8. Authorize application for Roberti-Z'Berg-Harris Block Grant Program funds in the amount of $140,923 and approve local matching funds of $60,396 from the 2000/01 park ._ renovation project for Wilson Park improvements, Resolution No. 01-198. September 17, 2001 Cupertino City Council Page 4 Lowenthal talked about the process of receiving input from the neighbors who wanted the park improved, but did not want a skatepark. Lowenthai moved to adopt Resolution No. 01-198. Burnett seconded and the motion carried 4-0. 9. Establish a Teen Commission, Resolution No. 01-199. James spoke in favor of establishing a Teen Commission and said that she wanted the commission to be able to give input and offer their perspective on other projects as well, such as the library and the Sports Center. Parks and Recreation Director Therese Ambmsi Smith spoke about the appointment and selection process and reviewed the staff report and the resolution. Robert Levy, 10802 Wilkinson Avenue, spoke in favor of a teen commission' but was concerned that the criteria of selection wasn't clearly defined. He asked only residents of Cupertino would be considered, or if any student of a Cupertino middle school or high school would be considered. Smith said that there would be a residency requirement. Burner moved to adopt Resolution No. 01-199 with the addition oftbe words in the first bullet to say "at least one from each grade 7 through 12." PUBLIC HEARINGS 17. Ordering Vacation, Tract 9335--Wailin Court, Resolution No. 01-206. Public Works Director Ralph Quails asked to have this item continued to October 15 because several utility companies had asked for time to evaluate the item. Mayor James opened the public hearing. There were no speakers and the public hearing was continued to October 15, 2001. 18. Ordering Vacation, Maximo Perez, 1248 Weymouth Drive, APN 362-10-063, Resolution No. 01-207. Mayor James opened the public hearing. There were no speakers and the public hearing was continued to October 15, 2001. 19. Appeal of Planning Commission appmvai of Application No. 14-ASA-01, regarding architectural and site approval for lighting, color, materials, landscaping and other design features of an approved apartment building at Lot 1, Tract 7953, Cupertino City Center (APN 369-01-029). The Applicant is the Stevens Creek Aparlments (Verona). The appeal was filed by Councilmember Don BurneR. September 17, 2001 Cupertino.City Council Page 5 · -- Bumett moved to continue the appeal to October 1, 2001. Lowenthal seconded and the motion carried unanimously ..... 20. Revision to Fee Schedule, Resolution No. 01-208. Administrative Director Carol Atwood reviewed the staff report. Mayor James opened the public hearing. There were no speakers and the public hearing was closed. Burner moved to adopt Resolution No. 01-208. Lowenthal seconded and the motion carried 4-0. 21. IssnAnce of $1.6 million tax-exempt revenue bonds by the City of Cupertino to assist in the financing of the acquisition and construction of multi-family rental housing project by Cupertino Community Services (CCS), to be located at 10114 and 10214 Vista Drive, Cupertino. Atwood reviewed the staff report and said that materials weren't available in time for the meeting. She asked to have the public hearing continued until October 1, 2001. Mayor James opened the public hearing. There were no speakers and the public hearing was continued until October 1, 2001. PLANNING APPLICATIONS UNFINISHED BUSINESS NEW BUSINESS 22. Approval request for Apple Cab Co. - Taxicab Owner Permit Application. Atwood reviewed the staff report and asked council to review and approve the fee schedule. Bumett moved to approve the application and fare schedule. Lowenthal seconded and the motion carried 4-0. 23. Use P¢,uit to transfer floor area ratio development credits from Imperial Avenue to Results Way Corporate Park, to convert amenity space to office space, and to create a pedestrian path and parking area. Application No: 04-U-01; G-rosvenor California Limited. The project is located at 10120 Imperial Avenue & One Results Way, APN 357-20-013. This item is recommended for approval. Senior Planner Vera Gil reviewed the staff report. She explained that the conversion of space is being requested by the applicant in order to remain in compliance with September 17, 2001 Cupertino City Council Page 6 Cupertino's General Plan. She said that the Oeneral Plan has a provision allowing this conversion to take place, especially when it helps create new housing units. Council discussed amenity space and to possibly re-evaluate how it is treated in the General Plan. Burnett talked about being proactive with zoning issues now in order to maximize the chances of getting housing in future developments. Burnett moved to approve Application No. 04-U-01. Chang seconded and the morion carried 4-0. 24. First reading of Ordinance No. 1886:. "An Ordinance of the City of. Cupertino, Amending Tifle 1, 5, 8, 10, 11, 13, 14, 16, 17 and 19 of the Cupertino Municipal Code for the Purpose of Conforming the Provisions of the Code to the Requirements of State and Federal Law, Conforming the Provisions of the Code to be Consistent with Present City Practices, Eliminating Redundant and Obsolete Provisions, Clarifying old Provisions with New Language, and Consolidating and Sireamlining Various Provisions." The subject matter of the rifles to be amended' include: general provisions; business licenses and regulations; animals; public peace, safety and morals; vehicles and traffic; parks; streets, sidewalks, and landscaping; buildings and construction; signs; zoning; smoking. City Attorney Chuck Kilian reviewed thc staff report. Burner moved that Ordinance 1886 be read by title only and that the City Clerk's reading constitute the first reading thereof. Lowenthal seconded and the motion carried 4-0. Chang asked about state laws regarding the keeping of certain breeds of dogs and if there were any ordinances, which covered that. Kilian said that the City ordinance now provides for a procedure in which the City Manager will hold a hearing .to decide if a particular animal is dangerous or potentially dangerous, and takes evidence on a case-by-case basis. Acting Manager Carol Atwood responded that issues with vicious animals have been more of an exception rather than a rule and that cases are handled individually. She recommended no change to thc current ordinance. ORDINANCES STAFF REPORTS September 17, 2001 Cupertino City Council Page 7 · - COUNCIL REPORTS Bumett said that he attended the Centrai/No~ Central Flood Control Advisory Committee and there was concern about some very restrictive ruling on water run-off` from the Regional Water Quality Board. He explained that for future development there would be requirements for catch basir~ on property sites. Chang commended Lowenthal for his chairing of the Cupertino Community Services fundraising event. Lowenthal talked about the CCS fundraising BBQ, which raised $50,000 and commended Michael O'Dowd and his staff for the exceptional condition of the park. He also said he spoke at the Leadership Cupertino kickoff BBQ. He commended Carol Atwood, Dorothy Steenfott and Darryl Stow for their leadership in making it such a successful program. He said that the Animal Control Joint Powers Authority (J'PA) office opened in Santa Clara and that the IPA is in negotiation for land to build a holding facility. He said that the library JPA fimding mechanism runs out in 2005 and what was approved on the Consent Calendar was a way for the JPA to reconstruct itself in order to be able to raise money again. He said that this new funding would be on the ballot in about a year. James commended Administrative Director Carol Atwood for her leadership as Acting City Manager. She said she co-chaired the Library Steering Committee, along with Chang, and she _ attended the second public meeting regarding the library project. She mentioned the Moon Festival, which is the last weekend of September at Memorial Park. She commended Public Information Officer Rick Kitson for his work on the committee. James said that the Community Congress (town hall meeting) would be on October 5 at Quinlan Community Center. The theme is Voices and Visions, and she encouraged citizens to come and participate. She talked about the group of high school students from Cupertino High School, Monta Vista High School and Homestead High School that are participating in the Cornerstone Project from San Jose. CLOSED SESSION ADJOURNMENT At 8:00 p.m. the meeting was adjourned to a Library Workshop September 19, 3-5 p.m., Conference Room C/D. KJmberly Smith, City Clerk RESOLUTION NO. 0~-208 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO ALLOWING CERTAIN CLAIMS AND DEMANDS PAYABLE IN THE AMOUNTS AND FROM THE FUNDS AS HEREINAFTER DESCRIBED FOR GENERAL AND MISCELLANEOUS EXPENDITURES FOR THE PERIOD ENDING SEPTEMBER 14, 2001 WHEREAS, the Director of Administrative Services or her designated representative has certified to accuracy of the following claims and demands and to the availability of funds for payment hereof; and WHEREAS, the said claims and demands have been audited as required by law. NOW, THEREFORE, BE IT RESOLVED, that the City Council hereby allows the following claims and demands in the amounts and from the funds as hereinaiter set forth in Exhibit "A". CERTIFIED: Director of Administrative Services PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 1st day of 0etober ,2001, by the following vote: Vote Members of the City Council AYES:/~ NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: City Clerk Mayor, City of Cupertino 05/13/01 CITY OF CUPERTINO PAGE 1 ACCOU~TING PERIOD: 3/02 CHECK REGISTER - DISBURSEMENT FUND SET.~CTION CRITERIA: tran~act.yr-"02" and =ransact.trans_~a~e between '09/10/2001' and "09/14/2001" FD-RD - 110 - GENERAL FUND CASH ACCT CHECK NO ISSUE DT .............. V~qDOR ............. FDND/DSPT ..... DESCRIPTION ...... SALES TAX AMOUNT 1020 587744 09/14/01 4 A T & T 1108501 AUG 2001 SERVICE 0.00 15.36 1020 587744 09/14/01 4 A T & T 1108501 AUG 2001 SERVICE 0.00 15.36 1020 587744 05/14/01 4 A T & T 1108501 AUG 2001 SERVICE 0.00 37.51 1020 587744 09/14/01 4 A T & T 1108501 AUG 2001 SERVICE 0.00 15.36 TOTAL C~CE 0.00 83.59 1020 587745 09/14/01 2328 A/C S~aVIC~ & D~IGN C~). 1108505 TIME/MATSRI~ 0.00 733.89 1020 587746 09/14/01 8 ~ PONSR PURC~ING PO 1108505 SEPT 2001 ST~T 0.00 186.74 1020 587746 09/14/01 9 A~AG POWER ~'R~IN(~ PO 1108507 SSPT 2001 STMT 0.00 291.96 1020 587746 09/14/01 9 A~AG PO~ PUnChING PO 1108501 SSPT 2001 S~ 0.00 988.41 1020 587746 09/14/01 9 A~AG FO~ ~(~ING PO 1108505 SEPT 2001 S~T 0,00 47.12 1020 587746 09/14/01 9 ABAG POWER ~I~ ~ ~6066~0 SE~ 2001 SW 0.00 585.81 1020 58~7d6 09/1~/02 ~ ~ ~R ~ING ~ S~08~20 SE~ 2002 ~ 0.00 ~93.2~ 1020 S87746 09/14/01 9 ~ ~R ~I~ ~ 1108506 SK~ 2001 S~ 0.00 97.38 1020 587746 09/14/01 9 ~ ~ ~X~ ~ 1108508 SE~ 2001 S~ 0.00 44.08 1020 587746 09/14/01 9 ~ ~BR ~I~ ~ 1108503 SE~ 2001 ~ 0.00 574.49 1020 S8~746 09/14/01 9 ~ ~ ~X~ ~ 1108504 SE~ 2001 S~ 0.00 1620.79 ~ ~ 0,00 4940.00 1020 587747 09/14/01 1521 A~ STAIN~SS SUPPLY 1108407 MXSC ~ PE~ QU~ 0.00 3.69 1020 ~87747 09/14/01 1521 ~E GTAX~SS S~PLY 1108503 MZSC ~PPLIES P~ O~ 0.00 18.55 1020 587747 09/14/01 1521 A~ ~AIN~ES ~PLY 1108321 MISC S~PLIES P~ ~ 0.00 2~ 1020 587747 09/14/01 1521 ~ STAI~SS S~Y 1108407 MISC S~PLIES ~R ~ 0.00 226 1020 587747 09/14/01 1521 ~E ~AZ~SS ~PLY 1108321 MISC SUPPLIES P~ ~ 0.00 1759.42 1020 ~87747 09/14/01 1521 A~ STAIN~SS S~PLY 1108503 MISC S~IES ~R ~ 0.0G 1139.14 1020 587748 09/14/01 1680 ~V~E ~IX 1101000 S~PLIES P.O.7457 0.00 64.8~ 1020 587749 09/14/01 2~ AIR ~ ~I~ INC 6308840 FY 2001-2002 OP~ ~C 0.00 534.33 1020 587749 09/14/01 25 AIR ~ ~Z~S ZNC 6308840 ~ 2001-2002 O~ ~C 0.00 66.83 1020 587750 09/14/01 28 AIR~ 1108314 ~ 200~-2002 O~" ~C 0.00 77.32 1020 587750 '09/14/01 28 A~ ~08SO~ ~ 200~-2002 O~n ~C 0.00 77.32 1020 587750 09/14/01 28 AI~ 2708405 ~ 2001-2002 OP~ ~C 0.00 77.33 1020 587750 09/14/01 28 AIP~ 6308840 ~ 2001-2002 OPEN ~C 0.00 77.33 1020 587750 09/14/01 28 AIR~ 1108303 ~ 200~-2002 OP~ ~C 0.00 77.33 1020 587750 09/14/01 28 AZR~ 1108503 ~ 2001-2002 O~ ~C 0.00 77.33 ~ ~ECK 0.00 463.96 1020 S87751 09/14/01 888 ~ ~L ~Z~N~ I 5708510 ~Y ~ 0.00 992.0~ 1020 587752 09/14/01 50 ~R~ ~0~/~0 6308840 ~ 2001-2002 OP~ ~C 0.00 25.7S 1020 587753 09/14/01 57 ~K 1104510 ~P~E ~P~E 9/~ 0,00 343,25 1020 587754 09/14/0Z 199~ ~R ~E 5606640 ~D ~EE ~RK · ~F 0.00 1050.00 1020 587754 09/14/0Z 1997 ~OR ~ 5606640 ~S ~K · BBF 0.00 725.~q 1020 587754 09/14/01 1997 ~R ~E 5606640 PR~ 10 PZ~ ~ RE 0.00 645] RUN D~TE 09/13/01 TI~ 11:46:24 - FINANCIAL ACCOL~TING 09/13/01 CITY OF CUPERTINO PAGE 2 ACCOUNTING PERIOD: 3/02 CHECK REGISTER - DISBUR~4~NT FUND $~' 'ION CRITERIA: ~rmnsact.yr-#02' and cr&nsacc.~rans_date between '09/10/2001' and FLUID - 110 - ~EAL ~ CASH ACCT CH~CKNG ISSUE DT .............. VENDOR ............. FUND/DEPT ..... DESCRIPTION ...... SALES TAX ~MOUNT 1020 587754 09/14/01 1997 ARBOR CARE 5606620 PRUNE 10 PINE TREES RE 0.00 778.00 TOTAL CHECK 0.00 9005.00 1020 557766 09/14/01 2295 ARCH WIRET-mSE 1106265 9/2-10/1 #61870762 0.00 11.74 1020 587755 09/14/01 2298 ARCH WI~?.~8$ 1108501 9/2-10/1 #61870762 0.00 139.25 1020 587755 09/14/01 2298 ARCH WIRE,SS 1108203 9/2-10/1 #61870762 0.00 6.79 1020 5877E5 09/14/01 2298 ARCH WIRE~.~S$ 1107501 9/2-10/1 #61870762 0.00 7.74 1020 887755 09/14/01 2295 ARCH WIRELESS 6104800 9/2-10/1 #61870782 0.00 13.74 1020 587785 09/14/01 2298 ARCH WIRELESS 110&400 9/2-10/1 #61870752 0.00 13.48 TOTAL CHECK 0.00 192.74 1020 587755 09/14/01 1032 AW DIRECT INC 5308840 PARTS/SUPPLIES P.O.235 0.00 57.34 1020 557755 09/14/01 1032 AN DIRECT INC 8308840 PARTS/SUPPLIES P.O.236 0.00 290.96 TOTA~CHBCK 0.00 348.30 1020 587757 09/14/01 988 BAP AUTO PARTS 6308860 FY 2001-2002 OPEN PURC 0.00 58.32 1020 587757 09/14/01 968 BAPAUTO PARTS 6308840 FY2001-2002 OPeN PURC 0,00 20.24 1020 587757 09/14/01 968 BAP AUtO PARTS 6308840 FY 2001-2002 OPEN PURC 0,00 32.36 1020 587757 09/14/01 965 BAP AUTO PARTS 6308840 FY 2001-2002 OPEN PURC 0.00 212.09 1020 587757 '09/14/01 965 BAP AUTO PARTS 6308840 FY 2001-2002 OPEN PURC 0.00 76.74 1020 587757 09/14/01 968 BAP ~JJTO PARTS 6308840 FY 2001-2002 OPEN PURC 0.00 15.16 1020 587757 09/14/01 968 BAP AUTO PARTS 6308840 FY 2001-2002 OPEN PURC 0.00 33.84 1' 587757 09/14/01 968 BAP AUTO PARTS 6308840 FY 2001-2002 OPEN PU~C 0.00 23.81 /% CH~CK 0.00 472.56 1020 587758 09/14/01 720 BA-i-~-~K~ SySTEmS 6308840 FY 2001-2002 OPEN PURC 0.00 51.71 1020 587758 09/14/01 720 BATTERY SYSTEMS 6308840 FY 2001-2002 OPEN PURC 0.00 690.66 TOTAL CH~CR 0.00 742.37 1020 587759 09/14/01 2013 BAY AREA D3STRI~JTING CO 6308840 &0~LIF~ P.O.15306 0.00 351.44 1020 587760 09/14/01 M2002 B~H~TI, FAZLOLIAH & JES 110 REF CASH BON~ ENbEAS$ 0.00 12~0.00 1020 587761 09/14/01 2184 BLOSSOf4SOFTNARE 6104800 S~ARCH.BhOSSOH/I~gBSITE 0.00 300.00 1020 587752 09/14/01 103 BOOK PUBLISHING C(~4PANY 11~4300 FY 2001-2002 OPEN PURC 0.00 571.89 1020 557763 09/14/01 M2002 C A P R C B M 1101060 ~ CO~E4155ION ~RSHP 0.00 165.00 1020 557764 09/14/01 120 C.E. TOObCO 1108312 M~T~tIALS P.O.15253 0.00 553.70 1020 587764 09/14/01 120 C.B. TO0~ CO 1108321 MATERIALS P.0,15250 0.00 398.89 1020 587764 09/14/01 120 C.B. TOOL CO 1108321 MAT~tIAL$ P.O,15250 0.00 151.09 TOTAL CHECK 0.00 1103.68 1020 587765 09/14/01 133 CAL-LINE EQUIPMENT CO IN 6308840 CHIPPEN REPAIR/MAINT. 0.00 1024.90 1020 587765 09/14/01 133 CAL-LINB EOUZPM~NT CO ZN 1108408 RENTAL COST & REPAIR 0.00 2078.10 TOTAL CHECK 0.00 3103.00 1020 587766 09/14/01 2134 CAI~B]~/~S 1101500 2002 ~ 0.00 63.10 I 587757 09/14/01 130 CAIaIFO~NZA PARK ~ND RSCR 1106300 AI/tTOAL ~ERSHZP CPR~ 0.00 145.00 R~ ~ 09/13/01 TI~ 11:46:25 - FI~CIAL ~.CCO~q~TING 09/13/01 CITY OF CUPERTINO PAGE ACCOUNTING PERIOD: 3/02 CHECK REGISTER - DISNU~SE~ENT FUND SELECTION C~ITERIA: =rans&¢~.yr-"02" and ~ransact.~rans_da~e between #09/10/2001' and "09/14/2001" FOND - 110 - GENERAL FUND CASH ACCT CHECK NO IS~U~ DT .............. V~NDOR ............. F~T~D/DE~T ..... DESCRIPTION ...... S~J~ES TAX 1020 587768 09/14/01 150 CALXFOP,NIA PA~K AND HECR 5806349 CP~S MEMB~SHP S.LEWIS 0.00 140.00 1020 587769 09/14/01 1476 CANNON DESIGN GROUP 110 PRT~P~4T R#8609 0.00 1000.00 1020 597769 09/14/01 1476 C~0N DESIGN ~OUP 110 ~ ~I~ R~16103 0.00 440.00 1020 587769 09/14/01 1476 ~ON DESI~ GR~ 110 ~ R~X~MS R~16039 0.00 330.00 ~ ~ 0.00 1770.00 1020 587770 09/14/01 2232 ~I~, ~ES 110 ~ 0.00 306.50 1020 587770 09/14/01 2232 ~l~, ~BS 110 SS~ 0.00 103.84 ~ ~CK 0.00 410.34 1020 5~7771 09/14/01 1777 ~RI ~ 5606620 S~RVI~ ~g~ ~R 0.00 1~0.00 1020 587772 09/14/01 1460 ~I ~EIRO 6104800 9/2001 WSBSI~ ~TES 0.00 3201.25 1020 ~87773 09/14/01 143 ~EY ~I~IN~ INC 1103400 P~ODU~I~ ~ F 0.00 ~258.00 1020 ~87T74 09/14/01 1%8 ~H 11~8201 P~1'r~ ~H 8/13-9/11 0.00 25.12 1020 ~87774 09/14/01 148 ~H 1108507 P~A-r~ ~H 8/13-9/11 0,00 42.10 1020 ~87774 09/14/01 148 ~H 1108501 P~ ~H 8/13-9/11 0.00 21.20 1020 587774 09/14/01 148 ~H 1108314 ~-1-~ ~H 8/13-9/11 0.00 1020 58~T4 09/1%/01 148 ~H 1108504 P~-~-~'~ ~H 8/13-9/11 0.0~ 1020 587774 09/14/01 148 ~H .630~840 P~'&-I'~ ~ 8/13-9~11 0.00 ~ ~CK 0.00 157.55 1020 587775 09/14/01 149 ~ 1108101 PE~ ~H 9/6-9/11 0.00 6.15 1020 ~87775 09/14/01 149 ~H 1104000 P~ ~H 9/6-9/11 0.00 4.69 1020 587775 09/14/01 149 ~ 1104400 P~ ~H 9/6-9/11 0.00 3.70 1020 587775 09/14/~1 149 ~H 1101201 ~ ~H 9/6-9/11 0.00 24.55 1020 587775 09/14/01 149 ~H 11040~1 PE~ ~H 9/6-9/11 ~.00 17.00 10~0 ~87775 09/14/01 149 ~H 1101201 ~ ~H 9/6-9/11 0.00 ~ ~CK 0.~0 62.54 1020 587776 09/14/01 2136 ~ ~R 6109864 APC S~T ~S 1400 ~C 57.52 1020 587q77 09/14/01 1057 ~IDZ~ B~FITS S~VIC 110 ~F~ DE~/A~ 240125 0.00 1~3.09 1020 58777~ 09/14/01 1057 ~RIDI~B~EFITS S~VIC 110 *F~/A~ 24012 0.00 281.51 ~ ~CK 0.00 454.60 1020 587~78 09/14/01 1156 ~ 110 ~ 0.00 117.00 1020 587779 09/14/01 M ~, ~ Y. 580 Refund: ~ck - S~ O.00 49,00 1020 587780 09/14/01 M ~0, ~ 580 Reft: ~eck - F~. 0.00 96.00 1020 5877~1 09/14/01 983 ~'S ~D F~RS 1~08504 ~Z~/~TBRI~ 0.00 1197,00 1020 587782 09/14/01 2119 ~T~:~P ~1CI~ BU 1104200 ~ 10/24-10/26 0.00 175.00 1020 587783 09/14/01 173 ~-~ B~I~ OF ~ 5606620 ~ 2001-2002 OP~ ~C 0.00 NUN DATE 09/13/01 TXN~ 11:46:26 - FINANCXA~ ACCOUNTING 09/Z3/01 ~TY OF CUPERT~'I~O A~O~I~ PERIOD: 3/02 ~ECK R~GIS~R - DISB~ ~ - 110 - G~E~ F~ ~H A~ ~CK NO ISS~ ~ .............. ~R ............. ~E~ ..... 1020 587783 09/14/01 173 ~-~ BO~ING OF ~ 5606620 DE~ZTS/S~ & ~A 0.00 -65.00 ~ ~CK 0.00 260.~2 1020 587~84 09/14/01 ~002 ~OS, INC. 1104000 ~T; I~R~ 6.0 0.00 149.00 1020 58778~ 09/14/01 1312 ~Y ~ ~ W~H 6308840 CI~ ~HI~ DETAILING 0.00 150.00 1020 587786 09/14/01 1~4 J~S ~EY 5606620 S~VZ~ ~ ~R 0.00 500.00 1020 587787 09/14/01 M ~uang, Naming 5~0 Ref~d: ~eck- Rental 0.00 500.00 1020 587788 09/14/01 201 DAPP~ TIRE ~ 6308840 ~ 2001-2002 OP~ ~C 0.00 270.67 1020 587788 09/14/01 201 ~PER TI~ ~ 6308840 ~ 2001-2002 O~ ~C 0.00 220.99 ~ ~CK 0.00 491.6~ 1020 587789 09/14/01 1212 DAVID M WI~I~ 5606620 B~ ~ST ~V~ 0.00 80.00 1020 58~790 09/14/01 1838 DE~ ~I~ L.P. 61098~6 D~ ~CISION 330 MIN 0.00 2297.00 1020 587791 09/14/01 1994 DIS~I~ A~Y ~U~ 110 A ~PEZ JR 566398126 0.00 23.08 1020 ~87792 09/14/01 222 D~ ~S~IA~S 4209S24 S~V 12/2000 ~-i-~l~ 0.00 742~.87 1. 587793 09/14/01 228 D~Y'S TI~ SERVI~ INC 6308840 ~ 2001-2002 OP~ ~C 0.00 29~.08 1020 587794 09/14/01 230 ~ ~S~HTATI~ 5806349 BUS ~ 2001 8/17 0.00 1~0.00 1020 ~87794 09/14/01 230 ~ ~S~RTATION ~806349 BUS ~ 2001 8/15 0.00 301.00 1020 587794 09/14/01 230 D~ ~S~RTATION S806349 BUS ~Y~P 8/17 0.00 6~6.8~ ~ ~CK ~ 0.00 108T.8S 1020 587795 09/14/01 242 ~ D~L DE~ 110 SIT 0.00 -50.15 1020 ~87795 09/14/01 242 ' ~P~ D~ DE~ 110 SIT 0.00 17.50 1020 587795 09/14/01 242 ~ D~L DE~ 110 SIT/~ 932-0014-~ 0.00 16567.68 ~ ~CK 0.00 ~653~. 03 1020 587796 09/14/01 243 EM~ D~ 110 ~I/A~ 776-5260-0 0.00 845.60 1020 587797 09/14/01 234 ~l~RI~ ~TA SBHVZ~ 110 ~ ~I~ 0.00 1227.04 1020 58~797 09/14/01 2~4 ~I~ERI~ DATA S~VI~ 1104300 ~I~ ~ 8/20/2001 0.00 113.91 1020 587797 09/14/01 234 ~Z~I~ ~TA S~VI~ 1107301 ~T~ ~CK 0.00 1343.90 1020 587~98 09/14/01 249 E~RO ~Z~ 5606620 ~ 2001-2002 O~ ~C 0.00 377.10 1020 587~9~ 09/14/01 ~49 ~0 ~I~ 5606620 FY 2001-2002 O~ ~C 0.00 460,24 1020 587?98 09/14/01 249 ESSO ~Z~ 5606620 ~ 2001-2002 OP~ ~C 0.00 96.52 1020 587~98 09/14/01 249 E~RO ~Z~ 5606620 ~ 2001-2002 O~ ~C 0.00 338.72 ~ ~S~ 0.00 1272.58 1020 587799 09/14/01 260 ~ ~ ~P 1108601 ~ S~VICE 0.00 143,42 1020 587799 09/14/01 260 FgD~ ~S ~RP 1108601 ~Z~ S~VI~ 0.00 192.04 1' 587799 09/14/01 260 ~ ~SS ~RP 1106100 ~Z~ SSRVZ~ 0.00 52.12 DATE 09/13/01 TIME 11:46:27 ~ FINANCIAL ACCOUNTING 09/13/01 CITY OF CUPERTINO PAGE 5 ACCOUNTING PERIOD: 3/02 CHECK RESISTER o DIEBURSEHE~T FUND SELECTION CRITERIA: ~ransact.yr-"02" and ~ransac~.~rans_date between "09/10/2001" and -09/14/2001- FUND - 110 - GENERAL FUND CASH AOiT CHECK NO ISSUE DT .............. VENDOR ............. FUND/DEPT ..... DESCRIPTION ...... SALES TAX AMOUNT 1020 587799 09/14/01 260 FED~P~ EXPRESS CORP 110 COURIER SERVICE 0.00 18.60 TOTAL CHECK 0.00 406.18 1020 587800 09/14/01 1255 FIRST AUTO~4OTIVE DISTRIB 6308840 FY 2001-2002 OPEN PURC 0.00 54.99 1020 587000 09/14/01 1255 FIRST AUTOMOTIVE DISTEIB 6308840 FY 2001-2002 OPEN PURC 0.00 122.25 TOTAL CHECK 0.00 177.24 1020 587801 09/14/01 2361 FIRST BANKCARD 5506549 JULy & AUG 2001 STMT 0.00 2138.49 1020 587802 09/14/01 2361 FIRST BANKCARD 5606620 $TMTS 7/2001 & 8/2001 0.00 407.08 1020 507802 09/14/01 2361 FIRST BANKCARD 5806349 STMTS 7/2001 & 0/2001 0.00 1917.14 1020 587802 09/14/01 2361 FIRST BANKCARD 1106100 ST~TS 7/3001 & 8/2001 0.00 409.00 1020 587802 09/14/01 2361 PIRSTBA~KCARD 1106342 ST~TS 7/2001 & 8/2001 0.00 893.40 1020 587502 09/14/01 2361 PIRST BARKCARD 5806449 STMTS 7/2001 & 8/2001 0.00 239,50 1020 557502 09/14/01 2361 FIRST BAN~RD 5806349 STMTS 7/2001 & 8/2001 0.00 2456.02 1020 587502 09/14/01 2361 FIRS~ BANKCA~D 5606620 ST~S 7/2001 & 5/2001 0.00 254.02 1020 587802 09/14/01 2361 FIRST BANKCARD 1106448 ST~TE 7/2001 & 8/2001 0.00 204.51 1020 507002 09/14/01 2361 FIRST BANKCARD 1106265 STMTS 7/2001 & 8/2001 0.00 4.95 1020 587802' 09/14/01 2361 FIRST BAI~KCARD 1106647 ST~4TS 7/2001 & 5/2001 0.00 204.52 TOTAL CH~CK 0.00 7000.14 1020 587803 09/14/01 1938 FLOR~TIN~ RE~TA~ GRP 1101070 DIll/PC MI~ 0.00 72.~o 1020 587804 09/14/01 268 FOSTER BRUE SECURITY SYS 1108504 PA~TS/~UPPLI~ 0.00 43 .... 1020 587505 09/14/01 274 FRY'S ELECTRONICS 6104800' SUPPLIES P.O.15503 0.00 255.85 1020 587808 09/14/01 2037 ~AR~HA C4%RCXA 1104400 P~IMBURSEMENTS CERT/CA 0.00 95.31 1020 587506 09/14/01 2027 MARSHA C~ARCIA 1104400 I~IMBUR~]~MENT 9/11 0.00 73.39 TOTAL C~CK 0.00 188.70 1020 587507 09/14/01 281 GARD~uAND ' 6308540 FY 2001-2002 OPEN PU~C 0.00 59.02 1020 507807 09/14/01 281 GARDBI~,aAND 1108314 SUPPLIES P.0.15386 0.00 353.75 1020 587807 09/14/01 281 GARDENLAND 1108408 SUPPLIES P.O.15358 0.00 S04.88 TOTAL CH~CK 0.00 917.65 1020 557808 09/14/01 M GARG, GUA~JAN 580 Refund: Check - S~4ER 0.00 145.00 1020 557809 09/14/01 298 GRAXN(~EN XNC 1108507 FY 2001-2002 OP~ PURC 0.00 47.42 1020 507809 09/14/01 298 GRAXN~ER XNC 1108501 FY 2001-2002 OPEN PURC 0.00 384.84 1020 557809 09/14/01 298 GRAI~ XNC ~100501 FY 2001-2002 OPEN PURC 0.00 35.39 1020 587809 09/14/01 290 GRAXN~EN INC 6308540 FY 2001-2002 OPEN PURC 0.00 156.16 1020 587009 09/14/01 298 GRAXNGER XNC 1108405 SUPPLIES P.0.15349 0.00 370.80 1020 557809 09/14/01 295 GRAING~R XNC 1108312 SUPPLXES P.0.15371 0.00 199.38 1020 587809 · 09/14/01 298 GRAX~ XNC 2708405 SUPpLIRS P.0.15334 0.00 314.09 1020 587809 09/14/01 298 GRAXNGER INC 1100312 SUPPLIES P.0.15371 0.00 89.32 1020 587809 09/14/01 258 GRAINGEN INC 1108312 SUPPLIES P.0.15371 0.00 17.30 1020 507809 09/14/01 295 GRAXNGER INC 2705405 SUPPLIRS P.O.15334 0.00 43.20 1020 587809 09/14/01 290 ~RAXNGER XNC 1100030 FY 2001-2002 OPEN PURC 0.00 92.36 1020 587809 09/14/01 295 GRAINC,~R INC 1108830 FY 2001-2002 OPEN PURC 0.00 64 '" TOTAL CHECK 0.00 182~ DATE 09/13/01 TT~ 11:46:28 - FINANCIAL ACCCXHT~ING 09/13/01 CT/T OF CUP~RTIN0 PA~E 6 ACCOUt~IHG PER~0D: 3/02 CHECK REGISTER - DISBURSI~EHT FU~D S~'--~TON CRITERIA: =rans~tc~.yr-#02" &Eld ~rarmac~.=ramo_date between m09/10/2001" and #09/14/2001# FUND - 110 - G~J, ~JND CASH ACCT ~CK NO ISSUE DT .............. VENDOR ............. FUND/DEPT ..... DESCRIPTION ...... SALES TAX J~UNT 1020 587810 09/14/01 M2002 HICKS, PHILIP 5806349 ENTERTAIIG~NT 9/20 & 9 0.00 600.00 1020 587911 09/14/01 334 HO~ DgPO~/GECF 1108303 SUPPLIES P.O.22458 0.00 35.51 1020 587811 09/14/01 334 H0~ DSFOT/GSCF 1108505 SUPPLIES P.0.15356 0.00 220.11 1020 587811 09/14/01 334 H~ D~/GE~ 1108312 SUPPLI~ P.O.15332 0.00 49.52 1020 587811 09/14/01 334 H~ DB~/GECF 1108503 S~PLIES P,0.15343 0.00 206.36 1020 587811 09/14/01 334 H~ DE~/GE~ 5606640 SUPPLIES P.0.16979 0.00 60.88 1020 587811 09/14/01 334 H~DE~/GSCF ~0832~ SUPPLIES p,O.15370 0.00 147.51 1030 587811 09/14/01 334 H~ DE~/GE~ 1108505 ~PPLIES P,O.23625 0.00 19.90 1020 587811 09/14/01 334 H~ DEP~/GK~ 1108501 SUP~Z~ P.O.23729 0.00 21,97 1020 587811 09/14/01 334 H~ DE~/GECF 1108321 ~PP~I~ P.O.23740 O.00 52,02 1020 587811 09/14/01 334 H~DE~/GECF 110~312 ~PLIES P.O.23674 0.00 3.11 1020 587811 09/14/01 334 ~ DE~/GS~ 2708405 SUPPLES P.0.15312 0.00 89.97 1020 587811 09/14/01 334 H~ DB~/G~CF 1109303 S~ P.O.15307 0.00 100.61 1020 587811 09/14/01 334 H~ DB~/~ 2708404 ~PPLIES P.O.15296 0.00 493.70 1020 587811 09/14/01 334 H~ DE~/GBCF 1108507 SUP~IES P.O. 22460 0.00 29.67 1020 587811 09/14/01 334 ~ DE~/GECF 1108303 R~ SUP~IKS 0.00 -35.Sl 1020 597811 09/14/01 334 ~ DE~/~CF 1108407 ~PPLIES P.O.22454 0.00 54.V6 ~ ~ 0.00 1550.09 1020 587812 09/14/01 1898 HORI~ 1108312 ~ 2001-2002 O~ ~C 0.00 59.55 1~~ 587812 09/14/01 1898 HORI~N 1108303 ~ 2001-2002 O~ 1, 5~812 09/14/01 1898 ~RZZ~ 1108303 ~ 2001-2002 OP~ ~C 0.00 16.21 1020 587812 09/14/01 18~8 HORI~ 1108303 ~ 2001-2002 O~ ~C 0.00 103.03 1020 587812 09/14/01 1898 HORZ~ 1108303 ~ 2001-2002 OP~ ~C 0.00 248.92 1020 587812 09/14/01 1898 HORIS~ 1108407 ~ 2001-2002 OP~ ~C 0.00 176.07 ~ ~RCK 0.00 611.80 1020 S87813 09/14/01 M ~ZU, D~S S~0 ~f~: ~eck - S~ 0.00 30.00 1020 587814 09/14/01 1628 ~SC I~I~TZ~ B~ 1108312 ~F~ ~PAIR 0.00 965.81 1020 587814 09/14/01 1628 ~R~C I~Z~TI~Z 1108312 ~PAI~ O~g~ HIGH 0.00 279.26 ~ 0.00 1245.07 1020 S87815 09/14/01 M ~rr~, Ja~s 550 Ref~d= ~eck - cancel 0.00 18.00 1020 587816 09/14/01 343 I~ ~ZR~ ~U~-45 110 *Z~ 0.00 1020 587817 09/14/01 M Z~HI, ~I~ 580 Reft= ~eck - F~. 0.00 117.00 1020 587818 09/14/01 347 I~Z~ ~IPER 6308840 S~PLZ~ P.O.15360 0.00 262.70 1020 587819 09/14/01 ~002 Z~T~ OF B~I~ 1107503 ~E L.S~CZA 0.00 695.00 1020 587820 09/14/01 1242 IN~-~I~S 1101000 B,~/S.J~ 0.00 54.60 1020 587820 09/14/01 1242 IN~-~I~S 1104310 ~PE~ 0.00 3937.56 ~ ~ 0.00 3992.16 1020 587821 09/14/01 2455 I~D IN~. ~1'~ 1102403 ~ ~P~ 0.00 600.00 1¢ 587821 09/14/01 2455 I~D IN~. SY~ 1102403 ~RT 0.00 375.00 R~ ~ 09/13/01 TI~ 11:48:29 o 09/13/01 CITY OF CUPERTINO PAGE 7 ACCOUNTING PERIOD: 3/02 CHSCK REGISTER - DISBURSEMENT FUND SELECTION CRITERIA: ~ransac~.~fr-'02" and ~ransac~.crans_date between "09/10/2001' and "09/14/2001" ~ - 110 - GENEP~ FUND CASH ACCT CHECK NO ISSUE DT .............. VENDOR ............. FUND/DEPT ..... DESCItIPTION ...... SALES TAX AMOUNT 1020 887821 09/14/01 2455 INTeGRATeD INFO. SYSTEMS 1102403 INSTAr.r~TION/TRAINING 0.00 10230.00 ~TAL C~CK 0.00 11208.00 1020 587822 09/14/01 353 IRON ~K)UNTAIN 1104300 FY 2001-2002 OPEN PURC 0.00 442.46 1020 587823 09/14/01 1009 J.A. SEXAUER INC 1108303 SUPPLIES 0.00 142.65 1020 587824 09/14/01 1645 MARIA JII~NEZ 1104510 HEALTHFAIR PRZ2ES 0.00 88.70 1020 587825 09/14/01 M Johnson, Alan 550 Refund: Check - cancel 0.00 68.00 1020 587826 09/14/01 2480 KAI~ CO~4PANIES INC. 5806349 SUPPLIES P.O.16825 0.00 186.24 1020 587826 09/14/01 2480 K~LAN COmpaNIES INC. 5806349 SUPPLIES p.0.18766 0.00 525.31 TOTAL CHECK 0.00 711.55 1020 587827 09/14/01 M KIMURA, MANABU 580 . Refund: Check - FALh # 0.00 65.00 1020 587828 09/14/01 2144 ORIFF I~UCI~SP, G 5606620 SESVICEAGREEMENT FOR 0.00 154.00 1020 587829 09/14/01 M LAO, HUI-LING 580 Refund: Check - F~/~L. 0.00 111.00 1020 587830 09/14/01 1217 THE LEARNING GAME 5806349 SUPPLIES P.O.23383 0.00 30.35 1020 587831 09/14/01 ~42002 LEYVA MIDDT-~ sCHOOL 5600000 R~F OVPI~/~4 BBF 0.00 18', 1020 587832 09/14/01 2467 TROY LOWRy 5606640 SERVICE AGREEV~NT FOR 0.00 616.00 1020 587833 09/14/01 M HAUShlNG, S~Y 580 Rc£und= Check - FALL. 0.00 65.00 1020 587834 09/14/01 1292 MCI WORLDCON 1104400 Y1483502 8/1-8/31 0.00 3.02 1020 587835 09/14/01 435 ~TAL BUILDING C0t4pANY 1108503 INSTALL OVEI~ FOOR 0.00 5474.00 1020 587836 09/14/01 461 MOREL~ SCHOOL DISTRICT 5806349 BUS CLUB 2001 ~ 2 0.00 2593.00 1020 587837 09/14/01 )42002 MOP, C~0 AT~BXA~ER 5606620 COmpLETION OF LIFEGUAR 0.00 125,00 1020 587838 09/14/01 N MORI, TOSHIAKI 580 Refund: Check - FALL.S 0.00 44.00 1020 587839 09/14/01 2281 MURPHY, MCNAY & DAVIS,LL 2507304 LEC~AL SERV 7/1-7/31 0.00 5495.82 1020 587840 09/14/01 M MUZAC. JESSICA 580 Refund: ~heck - Nancy 0.00 40.00 1020 587841 09/14/01 471 MYERS TIRE SUPPLY CONPAN 6308840 SUPPLIES/PARTS P.O.153 0.00 .374.17 1020 587842 09/14/01 2459 )~VIN MYERS 5606620 SERVICE AGREEMENT FOR 0.00 301.00 1020 587843 09/14/01 302 NATIOI~ DBF2P~ CO,PEN 110 *NAT'L DEF 0.00 16554.41 1020 587843 09/14/01 302 NATION~Ja D~F~D C0~4P~ 110 *NAT'h DEF 0.00 25.00 1020 587843 09/14/01 302 NATIONAL DBFBRRED CONPEN 110 *NAT~LDEF 0.00 -25 '~ TOTAL CHECK 0.00 1655 N~ D~TIg 09/13/01 TII~ 11:46:30 - FINANCIAL ACCOUNTING 09/13/0! CITY OF CU~ERTTN0 PAGE 8 ACCOU~qTTNG PERIOD: 3/02 ~ECK REGIS~R - DISB~ ~ SF'~--ION ~IT~IA: c~an~act.yr-'02' and cransac~.~rans_date be~en "09/10/2001" and "09/14/2001' ~ - 110 - G~ ~ ~H AC~ ~ECK NO IS~ ~ .............. V~R ............. ~/DB~ ..... DES~I~ION ...... ~S T~ ~0~ 1020 587844 09/14/01 1341 ROBERTA NAVARRO 8606620 SERVIC~ ~RE~v~EIqT FOR 0.00 90.00 1020 597845 09/14/01 486 NOBLE FORD TRACTOR INC 6308840 CCMPLETE REPAIR ON IND 0.00 6.53 1020 587845 09/14/01 486 NOBLE FORD TRACTOR INC 6308840 C0~PLETR REPAIR ON IND 0.00 2468.89 TOTA~ CHECK 0.00 2475.42 1020 587848 09/14/01 491 NUNES MANUFACTURING 6308840 SUPPIES/p~d~TS P.O.1937 0.00 241.41 1020 587847 09/14/01 499 DEBBIE O'NEILL 5606620 S~RVICSAGP. E~4ENT FOR 0.00 495.00 1020 587948 09/14/01 494 OFFICE DEPOT CREDIT P~AN 1101500 SUPPLIES 0.00 100.91 1020 S87849 09/14/01 495 OFFICE HELPER 1104300 FY 2001-2002 OPEN PURC 0.00 139.32 1020 587049 09/14/01 495 OFFICE HELPER 1104300 F~ 2001-2002 OPEN PURC 0.00 185.65 TOTAL ~CR 0.00 304.97 1020 587850 09/14/01 2~94 OL~NDER C0~PANY INC. o TH 1108314 SUPPLIES P.0.22493 0.00 5.37 1020 587851 09/14/01 501 OPERATING SNOINEERS #3 110 UNION DUSS 0.00 554.00 1020 587852 09/14/01 503 ORCHARD SUPPLY 5506640 BAR'ED DISC 8/26 STNT 0.00 -10.46 1' 587852 09/14/01 503 ORCHARD SUPPLY 5606620 FY 2001-2002 OP~I PURC 0.00 118.69 1, 587852 09/14/01 503 ORCHARD SUPPLY 5606640 FY 2001-2002 OP~ PURC 0.00 145.77 1020 587852 09/14/01 503 ORCI~RDSUPPLY 5606640 FY 2001-2002 OPSN PURC 0.00 159.79 1020 587852 09/14/01 503 ORC~M~D SUPPLY 5606640 FY 2001-2002 OPEN PURC 0.00 684.54 1020 587852 09/14/01 503 ORCHARD SUPPLY 5606640 FY 2001-2002 OP~/~ PURC 0.00 238.03 TGTA~CH~CK 0.00 1329.16 1020 587853 09/14/O1 981 OROLM~D SUFPLY H~RD~AR~ 1108409 SUPPLISS P.O.10390 0.00 53.98 1020 587853 09/14/01 901 ORCHARD SUPPLY HARD~AR~ 1108314 SUPPLIES P.O.15344 0.00 218.92 1020 587853 09/14/01 991 ORCHARD SUPPLY H~RD~d~E 1106647 SUPPLIES P.0.16835 0.00 21.57 1020 587853 09/14/01 991 ORC~IARD SUPPLY H~t~t, Rg 1108312 $UPPLIES P.0.15333 0.00 18.32 1020 587853 09/14/01 981 ORCHARD SUPPLY HARDWARE 1108408 SUPPLIES P.O.22433 0.00 49.50 1020 587853 09/14/01 981 ORCH~RDSUPPLYHAR/~ARE 1108408 SUPPLIES P.O.22434 0.00 22.57 1020 587853 09/14/01 981 ORCHARD SUPPLY ~ 1108409 SUPPLIES P.0.22425 0.00 . 33.99 1020 587853 09/14/01 981 ORCHARD SUPPLY HARD'ARE 6308840 SUPPLISS P.0.15323 0.00 159.32 1020 587853 09/14/01 951 OBC~RD SUPPLY HR~U~f,M~ 1108303 SUPPLIES P.0.15318 0.00 119.92 1020 587853 09/14/01 981 ORCHARD SUPPLY 14~d~D~AR~ 1108408 SUPPLIES P.O.22432 0.00 50.72 1020 587853 09/14/01 981 ORCI~RD SUPPLY HARD~M~ 2708405 SUPPLIES p.O.22441 0.00 36.24 1020 587853 09/14/01 981 ORCHARD SUPPLY H~RD~AR~ 1108303 SUPPLIES P.O.15315 0.00 248.35 1020 587853 09/14/01 981 ORC~4~RD SUPPLY ~ 2708404 SUPPLIES P.O.15291 0.00 100.06 1020 587853 09/14/01 981 ORCHARD SUPPLY P,~RD~RS 1108315 SUPPLIER P.O.15294 0.00 181.88 1020 587853 09/14/01 991 OBOL~J) SUPPLY H~f~R~ 1108408 SUPPLIES P.0.15304 0,00 313.17 1020 587853 09/14/01 981 ORC~M~D SUPPLY ~ 1108312 SUPPLIES P.O.22456 0.00 25.81 1020 597853 09/14/01 981 OROLM~D SUPPLY H~R/~ 1108847 SUPPLIES P.O.22395 0.00 11.74 1020 587853 09/14/01 981 ORC~t,RD SUPPLY H~RD~AR~ 2708405 SUPPLIES P.O.22442 0.00 58.14 TOTAL OBEC~ 0.00 1703.11 102,~0. 587854 09/14/01 507 ~ OSBORNE DB~=OSBORI~ 1108503 TI~/MATHRIAZ~ 0.00 425.00 I 587854 09/14/01 507 ~ O$BORI~ DBA:OSBORI~ 1108303 TZ~/M~TSRZ~t~ 0.00 1585.00 RUN DATE 09/13/01 T*rME 11:46:31 09/13/01 CITY OF CUPERTINO PAGE 9 ACCOUNTING PERIOD: 3/02 CHECK REGISTER - DISBURSEF~NT FUND SELECTION CRITERIA: ~r&nsac~.¥r="02e and ~ransac~.~rans_date between "09/10/2001" and e05/14/2001# ". FUND - 110 - GENERAL FUND CASH ACCT CHECK NO ISSUE DT .............. VENDOR ............. FUND/DEPT ..... DESCRIPTION ...... SALES TAX 7~4OIH~T 1020 587854 09/14/01 507 DA~ OSBORNE DBA:OSBO~ 1108503 TINE/MATERIALS 0.00 2237.89 TOTA~ CHECK 0.00 4347.89 1020 587855 09/14/01 833 V E R S 110 pSRS 1959 0.00 112.53 1020 587855 09/14/01 833 P E R S 110 PERS SUYBK 0.00 37.52 1020 587855 09/14/01 833 P E R S 110 *PERS BYBK 0.00 451.12 1020 587855 09/14/01 833 P E R S 110 *PRES BYBK 0.00 269.95 1020 587855 09/14/01 833 P E R S 110 PEES EMPLY 0.00 157.52 1020 587855 09/14/01 833 P E R S 110 PERS EMPLY 0.00 23956.18 1020 587855 09/14/01 833 P E R S 110 PERS SPEC 0.00 117.88 TOTAL CHECK 0.00 25102.70 1020 587858 09/14/01 511 PACIFIC BEI~ 1108501 SERV 8/13-9/12 0.00 324.00 1020 587858 09/14/01 511 PACIFIC BELL 1101000 TELEPHONE ~ERV AUG 200 0.00 172.66 1020 587858 09/14/01 511 PACIFIC BELL 1102100 TELEPHONE SERV AUG 2O0 0.00 143.88 1020 587858 09/14/01 511 PACIFIC BELL 1101500 TELEPHONE SBEV AUG 200 0.00 316.53 1020 587858 09/14/01 511 PACIFIC BELL 1104300 TELEPHONE SBRV AUG 200 0.00 259.17 1020 587858 09/14/01 511 pACIFIC SELL 1101200 TEUEPHONE SBEV AUG 20 0.00 86.33 1020 587858 09/14/01 511 PACIFIC SELL 1103300 TE~"r'PH01IE SERV AUG 200 0.00 57.55 1020 587858 09/14/01 511 PACIFIC SELL 1106647 TEUEPHONE SBEV AUG 200 0.00 28.78 1020 587858 09/14/01 511 PACIFIC BELL 1103800 TELEPHONE SERV AUG 200 0,00 86.33 1020 507858 09/14/01 511 PACIFIC BELL 1104000 TELEPH0~E SE~V AUG 200 0.00 86,33 1020 587858 09/14/01 511 PACIFIC SET;. 1104100 TELEPHONE SERV AUG 200 0.00 17 1020 587858 09/14/01 511 PACIFIC ESLL 1104200 TELEPHONE SEEV AOG 200 0.00 8c 1020 587858 09/14/01 511 PACIFIC S~;.?. 1104510 TELepHONE SESV AUG 200 0.00 172.66 1020 587858 09/14/01 511 PACIFIC SELL 1108504 TELEPHONE SERV AUG 200 0.00 31.45 1020 587858 09/14/01 511 PACIFIC BELL 1108509 TE~PH0~qE SERV AUG 200 0.00 51.95 1020 587858 09/14/01 511 PACIFIC S~'.;. 1108407 TEL~PHONESSRV AUG200 0.00 14.93 1020 58788~ 09/14/01 511 PACIFIC BELL 1108508 TELEPHONE SERV AUG 200 0.00 57.78 1020 587858 09/14/01 511 PACIFIC BELL 1108706 TEL~PH01IE SERV AUG 200 0.00 82.17 1020 587858 09/1~/01 511 PACIFIC BELL 1106265 TELEPH0~E SB~V AUG 200 0.00 86.33 1020 587858 09/14/01 511 PACIFIC S~?.?. 1108201 TELEPHONE 8ERVAUG 200 0.00 269.35 1020 587858 09/14/01 511 PACIFZC BELL 6104800 TELEPHONE SE~V AUG 200 0.00 846.74 1020 587858 09/14/01 511 PACIPIC S~"~. 5806620 TEL~PHO'NE SERV AUG 20O 0.00 302.91 1020 587858 09/14/01 511 PACIFIC BELL 2308004 TELEPHONE SERV AUG 200 0.00 28.78 1020 587858 09/14/01 511 PACIFIC BELL 5606640 TELEPHONE SSRV AUG 200 0.00 194.01 1020 587858 09/14/01 511 PACIFIC BELL 1106647 TELEPHONE SERV AUG 200 0.00 258.98 1020 587858 09/14/01 511 PACIPIC E;?.;. 5708510 TELEPHONE SERVAUG 200 0.00 230.21 1020 587858 09/14/01 511 PACIFIC BELL 1106265 TELSPHON~ SERV AUG 200 0.00 201.43 1020 587858 09/14/01 511 PACIFIC BELL 1107301 TELEPHON~ SERV AUG 200 0.00 57.55 1020 587858 09/14/01 511 PACIFIC SELL 1108504 TELEPHONE SERV AUG 200 0.00 115.10 1020 587858 09/14/01 511 PACIFIC SELL 1108511 TELEPHONE SE~V AUG 200 0.00 57.55 1020 587858 09/14/01 511 PACIFIC SELL 1104400 TELEPHONE SESVAUG 200 0,00 86.33 1020 587858 09/14/01 511 PACIFIC BELL 1106100 · TELEPHOIIE SERV AU(] 200 0.00 86.33 1020 587858 09/14/01 511 PACIFIC SELL 1106265 TELEPH0~E SBEV AUG 200 0.00 460.41 1020 587858 09/14/01 511 PACIFIC BELL 1106529 TELEPHOI~E SERV AUG 200 0.00 28.78 1020 587858 09/14/01 511 PACIFIC BELL 1104530 TELEPHON~ SERV AUG 200 0.00 201.43 1020 587858 09/14/01 511 PACIFIC BELL 1108500 TELEPHONE SERV AUG 200 0.00 345.31 1020 587858 09/14/01 511 pACIFIC EELL 1107503 TELEPHONE SERV AUG 200 0.00 115.10 1020 587858 09/14/01 511 PACIFIC BELL 1107200 TELEPHONE SBEV AUG 200 0.00 86 '*' 1020 587858 09/14/01 511 PACIFZC BELL 1107301 TELEPHONE SERV AUG 200 0.00 25 DATE 09/13/01 TIME 11;48:32 - FINANCIAL ACCO~ITING 3-10 ACCOUNTING PERIOD: 3/02 CHECK REGISTER - DISBUrSEMeNT FUND FUND - 110 - GENERAL FUND CASH ACCT CHECK NO 1SSUE DT .............. VEI~)OR ............. I~J~D/DEPT ..... DESCRIPTION ...... SALES TAX AMOUNT 1020 967858 09/14/01 '511 PACIFIC BELL 1107202 TELEPHONE SERV AUG 200 0.O0 57.55 1020 587898 09/14/01 511 PACIFIC BELL 1107501 TELEPHONE SEEV AUG 200 0.00 374.09 1020 587858 09/14/01 511 PACIFIC BELL 1107502 TELEPHONE SERV AUG 200 0.00 28.78 1020 587858 09/14/01 511 PACIFIC BELL 1108101 TET.~pHONE SERV AUG 200 0.00 273.46 1020 987898 09/14/01 511 PACIFIC BELL 1108102 TELEPHONE SERV AUG 200 0.00 28.78 1020 587858 09/14/01 511 PACIFIC BELL 1106265 TELEPHONE SERV AUG 200 0.00 95.31 1020 587858 09/14/01 511 PACIFIC BELL 1108503 TELEPHONE SERV AUG 200 0.00 816.88 1020 587858 09/14/01 511 PACIFIC E~T.L 5205003 TELEPHON~ SERV AUG 200 0.00 28.78 1020 587858 09/14/01 511 PACIFIC BELL 5606620 TELEPHONE SERV AUG 200 0.00 287.76 1020 587858 09/14/01 511 PACIFIC BELL 5706450 TELEPHONE SERV AUG 200 0.00 345.31 1020 587858 09/14/01 511 PACIFIC BELL 1108601 TELEPHONE SNEV AUG 200 0.00 86.33 1~ 587860 09/14/01 1909 CAROLYN PAGIN 5606620 SERVICE AGREEMENT FOR 0.00 90.00 1020 587861 09/14/01 1537 PERFORMANCE TRAINING ASS 1107503 TRAINING A.DORSFIT 0.00 695.00 1020 587862 09/14/01 533 PER~ LONG TERM CAR~ P~UG 110 PHRS LTC/ACCT# 2405 0.00 262.16 1020 587063 09/14/01 H POLLOCK, GRAHAM 580 Refund: Check - FALl,. 0.00 65.00 1020 587864 09/14/01 2278 QU~T.T~, RALPH 4239222 REINEORSn~'TE 8/1-8/2 0.00 222.86 1020 587864 09/14/01 2278 OUA.LLS, RALPH 1108001 REIMBURSemeNTS 8/2-8/2 0.00 516.58 TOTAL CHECK 0.00 720.44 1020 S87865 09/14/01 1406 RAINES OIEVORLET 6308640 FY 2001-2002 OPE~ PURC 0.00 70.09 1020 587865 09/14/01 1406 RAINEE CHEVORLET 6308840 FY 2001-2002 OPEH FORC 0.00 40.34 1020 S67865 09/14/01 1406 RAINES CHEVORLET 6308640 FY 2001-2002 OPH~ ~'RC 0.00 2.45 TOTAL C~ECK 0,00 120.86 1020 587866 09/14/01 1071 REPCELlC ELECTRIC 1108502 JUmDA~ MAINTENANCE 0.00 460.00 1020 597866 09/14/01 1071 REPUBLIC ELECTRIC 1108830 TINE/MATERIALS 0.00 5715.00 1020 987867 09/14/01 2043 RUDE'S pEST MANAGEmeNT 5606640 BEEHIVE TREATMmqT BBF 0.00 200.00 1020 S87868 09/14/01 H2002 S.CLARA/$.MATEOCIfl'YCHP 1108101 A-r~'~a~ES J.CHOU,N.LER 0.00 336.38 1020 587859 09/14/01 2264 SEIERL'S CUSTOM APPLICAT 5606640 CHEMICAL APP~ TO BBF G 0.00 276.00 RUN DATE 09/13/01 TINE 11:46:34 - FINANCIAL ACCO~ING 09/13/01 CITy OF CUPERTINO PAGE 11 ACCOUNTTNG PERIOD: 3/02 CHECK REGISTER - DISBURSENENT ~ SET.~CTION CRITSR. IA: traneact:.yr="02" and I~ransact..l:rans_dat:e be~,ween "09/10/2001" and "09/14/2001" ~ - 110 - GEN~m. AL FUNU CASH ACCT CH~CK NO ISSUE DT .............. VENDOR ............. FUND/DEPT ..... DESCRIPTION ...... SALES TAX AMOUNT 1020 587970 09/14/01 M SHA~MA, RAG~AV 580 Refund: Check - SU~4qER 0.00 111.00 1020 887871 09/14/01 2051 SIADAT ENTERPRISES, TNC. 6308840 VEHICLE WANH 8/1-8/31 0.00 188.E0 1020 587872 09/14/01 2458 TOM STNCLAIR 5606620 SERVICE AGREEMENT FOR 0.00 182.00 1020 587873 09/14/01 2457 NISHA SINGH 5606620 SEEVICR AGP,~EMENT FOR 0.00 84.00 1020 887874 09/14/01 M2002 SMITHSONo JOAN 110 REF ENCROACH BOND 0.00 500.00' 1020 887875 09/14/01 1116 SONY ELEC'~RONICS INC 1103500 SUPPLIES P.O.18430 0.00 310.40 1020 887878 09/14/01 1116 SONY ET.~CTRONTCE INC 1103500 SUPPLIES P.O. 18430 0.00 57.46 TOTAL CH~CK 0.00 267.06 1020 587876 09/14/01 1954 SPHERION CORPORATION 1104300 J.KNAPP W/E 8/26 0.00 526,50 1020 587876 09/14/01 1954 SPHERTON CORPORATION 1108101 J.GEORGE W/E 8/26 0.00 918,00 TOTAL CH~CK 0.00 1444, E0 1020 587877 09/14/01 1090 STATE BOARD OF EQ~TALI~.AT 1104300 BYRIqE AVE 01-05 0.00 300.00 1020 $87878 09/14/01 677 STATE STREET BANK & TRUE 110 ~PERS DEF 0.00 1679.58 1020 587879 09/14/01 1012 STOREPR0~qT DOOR SENVTCR 1108502 TIME/MATERIALS 0.00 16' 1020 587880 09/14/01 M Smith, Donald 850 Refund: Check - cancel 0.00 70.00 1020 587881 09/14/01 1068 T AND D CO~TCATIONS T 6104800 L~BOR/MATERI~LS FOR CA 0.00 923.00 1020 587992 09/14/01 701 T~/~GET STOPES 5806349 SUPPLIES P.O.15754 0.00 497.48 1020 587882 09/14/01 701 TARGET STORES 5806349 SUPPLIES P.0.23382 0.00 48.86 TOTAL CHECR 0.00 548.34 1020 587883 09/14/01 711 ~YS R U~ 5806349 SUPPLIES P.O.16763 0.00 174.83 1020 587884 09/14/01 1993 TI~ OF ~J~ COU 110 A LOPEZ ~R 586298126 0.00 161.54 1020 58788E 09/14/01 728 UC REGENTS/DEPARTmeNT B 1108601 E~S'rt~K JAN/2002 K.FUL 0.00 425.00 1020 587886 09/14/01 1154 UNITED WAY OF SANTA CLAR 110 UNI'A'~D WAY 0.00 139.25 1020 587887 09/14/01 2030 VALENTINO, LISA 1103500 REXMEURS~v;RN~/SOPPLT~S 0.00 99.22 1020 597888 09/14/01 M VARTY, SUVARNA 580 Re~=und: Check - SPRING 0.00 274.00 1020 587889 09/14/01 310 1/~RIZON HTI~LI?.SS (FOP34L'R 1102403 SBRV 7/23-8/22 (CODS) 0.00 152.71 1020 587890 09/14/01 310 VBRTZON #]~RELSSS (FORI~R 1103300 HAY TI~U 8/11 SERVICE 0.00 549.99 1020 587890 09/14/01 310 VBRTEO~ #Z~B~BSS (FORMER 1108501 HAY THRU 8/11 SBRVTCE 0.00 606.42 TOTAL CHECK 0.00 1156.41 1020 587891 09/14/01 H VIBGAS, JOEN 580 Refund: Check - FA,T~. 0.00 20 REN DATE 09/13/01 TIME 11:46'.34 - FINANCIAL ACCOUNTING 09/13/01 CITY OF CUPERTINO PAGE 12 ACCOUNTING PERIOD: 3/02 CHECK R~GISTER - DISBURSEMENT FUND SE~'- 'ON CRITERIA: tr~msacL.yr-#02# and =rans~c=.~rans_da~e be~wee~ "09/10/2001' and "09/14/2001N FU~ID ~ 110 - GRNERR.L FUND CASH ACCT C~CK NO ISSU~ DT .............. VEeR ............. FUND/DEFT ..... DESCRIPTION ...... SALES TAX ~J4OUNT 1020 587892 09/14/01 746 VIKING OFFICE PRODUCTS 5506549 SUPPLIES P.0.16012 0.00 94.73 1020 507893 09/14/01 ?45 VMI INC 6109857 NEC LT156 VIDEO FRO~EC 302.16 4079.16 1020 587893 09/14/01 ?45 V~4I INC 1103500 SONY DSR-1500 WITH ~%NA 0.00 4100.76 1020 887893 09/14/01 745 VMI INC 1103500 SONY DSR-1500 WITH ANA 0.00 1066.40 1020 587893 09/14/01 745 VMI INC 1103500 SONY R~SR RACK MOUNT 0.00 1563.84 TOTAL C~CK 302.16 11612.16 1020 567894 09/14/01 2435 ZAC WALDORFH 5606620 S~RVICE AGRE~4ENT FOR 0.00 364.00 1020 587895 09/14/01 775 WESTEP~N PACIFIC SIGNAL L 1108602 HAleD WIRE LOAD BAY FOR 0.00 1730.08 1020 587896 09/14/01 1608 ZACK EhECTRONICS INC 1103500 SUPPLIES P.0.16431 0.00 415.26 1020 567896 09/14/01 1608 ZACK ELECTRONICS INC 1103500 SUPPLIES P.O.16431 0.00 21.38 TOTAL C~IECK 0.00 436.64 TOTAL CASH ACCOUNT 359.68 228493.72 TOTAL F~ 359.68 228493.72 TOTAL REPORT 359.68 228493.72 RUN DATE 09/13/01 T'rNE 11:66:35 - FINANCIAL ACCOUNTING RESOLUTION NO. 01-209 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO ALLOWING CERTAIN CLAIMS AND DEMANDS PAYABLE IN THE AMOUNTS AND FROM THE FUNDS AS HEREINAFTER DESCRIBED FOR GENERAL AND MISCELLANEOUS EXPENDITURES FOR THE PERIOD ENDING SEPTEMBER 21, 2001 WHEREAS, the Director of Administrative Services or her designated representative has certified to accuracy of the following claims and demands and to the availability of funds for payment hereof; and WHEREAS, the said claims and demands have been audited as required by law. NOW, THEREFORE, BE IT RESOLVED, that the City Council hereby allows the following claims and demands in the amounts and from the funds as hereinafter set forth in Exhibit "A'. CERTIFIED: Director of Administrative Services PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 1st day of 0e~-ober ,2001, by the following vote: Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: City Clerk Mayor, City of Cupertino 09/21/01 CITY OF CUPERTINO PAGE 1 ACCO~ING PERIOD: 3/02 CHECK REGISTER - D~SBUR~EHEHT FUND 1020 586497 V 07/20/0~ ~002 ~SY SUX~S ~04530 H~ ~ES 3 OFFICERS 0.00 1020 587790 V 09/14/0~ ~838 DE~ ~T~NG ~.P. 6109856 DE~ ~CISION 330 MIN 0.00 -229~.00 1020 5S7897 09/21/01 4 A T & T 110850~ ~200~ SERVI~ 0.00 15.36 Z020 587898 09/21/0~ 7 ~ P~ ~R~T~ 6204550- SE~ 2001 ~.~P 1020 587899 09/2~/0~ 8 ~ P~ ~RP 6204550 ~P~S~ OF RSSSR 0,00 Z~024,20 Z020 587900 09/2Z/01 13 ~ · S~S S~ZTATZON C 5606640 ~ 200~-2002 OP~ ~C 0.00 168.80 1020 587900 09/2~/0~ Z3 ~ & SO~S ~ITATI~ C ~10832~ ~Z~ R~ 8/~-9/0 0.00 154.00 1020 S87900 09/2~/01 13 A~ ~ S~S S~ZTA~ZON C SE06640 ~DIT~O~ ~RT. ~l~; 0.00 327.24 ~ ~ 0.00 650.04 1020 587901 09/21/01 1680 ~V~ ~IX 1Z08101 ~P~IES P.O,16663 0.00 187.89 ~020 587901 09/21/01 1680 ~V~E ~IX 1108101 S~P~ES P.O,16662 0.00 402.34 1020 587901 09/2L/01 1680 ~V~E G~X 2709450 SUPPLIES P.0.16659 0.00 109.40 ~ ~ 0.00 699.63 1020 587902 09/21/01 M ~ ~ S~E 580 ~F. 1~2028.~12030.112 0.00 37.00 ~o 587903 09/2~/01 2423 ~R ~ ~I~ INC ~108501 ~ ~SI~ ~IT F 0.00 2378.00 1020 587904 09/2~/01 28 ~R~ 6308640 ~ 2001-2002 OP~ ~C 0.00 36.12 ~020 587905 0~/2~/01 1884 ~S-N~ D~VZ S606680 ~P~Z~S P.O.16977 0.00 80.88 1020 587905 0~/21/0~ 1884 ~T~S-~R~ DIV~ 5606680 S~P~Z~ P.O.16980 0.00 25.84 1020 587905 09/2~/01 1884 ~TSONS-~ DZVZ 5606680 ~PPLZE~ P.O.~6978 0.00 35.15 ~ ~CK 0.00 14~,87 1020 587906 09/2~/0~ 2276 ~ 1104510 MAWR S~VI~ 8/3~ O.00 ~65,00 ~020 587906 09/2~/01 2276 ~ L1045~0 MA~ S~V~ ~ 8/3~ 0.00 88.00 ~ ~ECK 0.00 253.00 ~020 58~907 09/2~/0L 2345 ~TA ~S~RTATI~ ~ 4209~18 ~LXC WO~ ~ 0.00 4282~,94 ~020 587907 09/2~/0~ 2345 ~TA ~S~TATX~ ~S 42091~8 ~C NOR~ ~ 0.00 3459L.04 ~ ~ 0.00 77402.98 1020 587908 09/21/01 44 ~I~ RBD ~S 1104400 ~ 2001-2002 OP~ ~C 0.00 40.00 1020 587909 09/21/01 45 ~I~F~C SUPPLY 2708405 SUPPLIES P.O.15367 0.00 567.00 1020 587910 09/21/01 2039 ~I ~ ~ PA~ ~ 1104000 8~l~ ~P~ ~-E 0.00 324.00 1020 587911 09/21/01 M ~, ~l~ 580 Reft: ~eck - S~ 0.00 22.00 1020 587912 09/21/01 982 ~P~ ~8~ ZRC 1101500 KSTA~/~I~ ~ ~ 0.00 111.84 1020 587913 09/21/01 2074 AT&T P~B~ B~TI~ 5506549 3 ~Y TZ~B~ 0.00 905.00 09/21/01 CITY OF CUPERTINO PAGE 2 ACCOUNTING PERIOD: 3/02 CHECK REGISTER - DISBURSEMENT FUND SEI~CT~ON CHZTERIA: ~ransact.trans_cla~e between "09/17/2001n and #09/21/2001~ TOTAI~ CHECK 0.00 1008.30 1020 587915 09/21/01 M BARE, ROBERT 580 Reflmd: Check - FALL: 0.00 96.00 1020 587919 09/21/01 1272 B.B~S BOOESt~ 5806349 D~ DI~CS 9/21/01 0.00 350.00 1020 587920 09/21/01 M Balanesi, Edna 550 Refund: Check -canceZ 0.00 45.00 1020 587921 09/21/01 M Bean, ~a~ylu 550 Refund: Check - Cancel 0.00 45.00 1020 587922 09/21/01 H Bianch£, Jenny 550 Refund: Check - Cancel 0.00 3f 1020 507923 09/21/01 N Bianchi, ~enny 550 Refund: Check - Cancel 0.00 45.00 1020 507924 09/21/01 H Blaneo, Ruth 550 Refund: Check o Cancel 0.00 36.00 1020 587926 09/21/01 127 TEE C~ZFORNZA CHANNEL 1103500 PROGRAI~4ING 9/2001 0.00 231.96 1020 587927 09/21/01 M C~, ~ 580 Refund: Check - SUV~V~R 0.00 11.00 1020 587928 09/21/01 144 C~SH 5606640 ~'~"i'~ C~SH 7/17-9/13 0.00 13.21 1020 587928 09/21/01 144 C~SH 5606680 PSTTY C~SE 7/17-9/13 0.00 3.58 1020 587929 09/21/01 148 C~SH 1101201 P~"r¥ C~SH 8/15-9/14 0.00 49.85 1020 587929 09/21/01 146 C~SH 1106285 ~'~-~*~ C~SH 0/15-9/14 0.00 3.99 1020 587929 09/21/01 146 C~SR 1106342 ~L-r~ C~SH 8/15-9/14 0.00 7.60 1020 587929 09/21/01 146 C~SH 5806249 PET/~ C~SH 8/15-9/14 0.00 90.62 1020 50?929 09/21/01 146 CASH 5506449 ~*~-r~ CASH 0/15-9/14 0.00 3.19 1020 507929 09/21/01 146 C~SH 5806349 ~ CASH 8/15-9/14 0.00 58.40 RUN DATE 09/21/01 TZM~ 08:02:16 - F'rNANCIA/, ACCOUNTZNG 08/21/01 CITY OF C'"UPE£TINO PAGE 3 ACCOUNTING PERIOD: 3/02 CHECK REGISTER - DISBURSEMENT FUND CASH ACCT CHECK NO ISSUE DT .............. VENDOR ............. FUND/DEPT ..... DESCRIPTION ...... SALES TAX ~MOUNT 1020 887930 09/21/01 149 C~H 1108100 PETTY CASH 9/10-9/18 0.00 8.00 1020 587930 09/21/01 149 CASH 1101070 PETTY CASH 9/10-9/18 0.00 1.80 TOTAL CHECK 0.00 211.41 1020 587931 09/21/01 1603 CASH 110 INCREASE p. CASH 0.00 100.00 1020 58?932 09/21/01 2483 CERTIFIED SALES & SERVIC 1108501 PARTS/SUPPLIES 0.00 48.4~ 1020 587933 09/21/01 M C~, LIH~0S~ 580 Refund: C~eck - SU~ER 0.00 11.00 1020 58?934 09/21/01 M C1~, Z~N~PE! 580 RefluX: C~eck - S~R 0.00 11.00 1020 587935 09/21/01 M CHUK, OIPING 580 Refund: Check - S~ER 0.00 11.00 1020 587936 09/21/01 154 ~ INDUSTRIAL SUPPLY 6308840 MXtT.~PJ4ATIC WELDER 0.00 945.00 1020 587936 09/21/01 164 ~ II~IAL S~PLY 1108303 S~PPLIES P.0.15343 0.00 46.76 ~)T~J~ C~CK 0.00 991.76 1020 587937 09/21/01 M ~ARK, ELIZ~ETH 580 Refund: Check - S~ 0.00 27.00 10~*~ 587938 09/21/01 175 COCA-COLAUSA 5606620 FOUNTAIN M~CHINES 0.00 21.60 10. 587938 09/21/01 175 CO~J~-~I~ USA 5506620 FO~AIN MACHINE 0.00 21.60 1020 587938 09/21/01 175 COCA-COLAUSA 5606620 F(~TAINMACHINE 0.00 21.80 1020 587938 09/21/01 175 C~)CA-~ USA 5606620 FOUNTAIN ~INE 0.00 26.99 1020 587938 09/21/01 175 COCA-CO~ USA 5606620 FOUNTAIN MACHI~S 0.00 21.60 1020 587938 09/21/01 175 CO~-~ USA 8606620 PO~AIN MACHINE 0.00 21.60 TOTAL CHECK 0.00 134.99 1020 567939 09/21/01 M2002 CONDY, JO~/~ 5506549 BINC~) R~FRES~4ENTS 0.00 24.87 1020 587940 09/21/01 194 C~ERTINO SUPPLY INC 5608640 FY 2001-2002 OPeN PURC 0.00 171.14 1020 587941 09/21/01 1838 DELL ~ING L.P. 6109856 C~R P.O.00030806 0.00 2480.76 1020 587942 09/21/01 ~002 DING, TI~HY 5506549 TEACH KARAOK~ 9/20 0.00 100.00 1020 587943 09/21/01 220 DISCOUNT SC~L S~PLY 5806349 SUPPLIES P.O.16755 0.00 488.45 1020 587943 09/21/01 220 DISC~)~T SCHOOL S~T~PLY 5806349 S~PLIES P.O.16885 0.00 15.01 1020 587943 09/21/01 220 DZSCO~ SCHOOL SUPPLY 5806349 SUPPLIES P.0.16885 0.00 342.34 TOTAL CHECK 0.00 845.80 1020 587944 09/21/01 222 DF~ ASSOCIATES 4209529 P~IC ~RKS CO~CT 0.00 5157.35 1020 587945 09/21/01 225 ~NE RIGHT RCOFING & G~JT 9609105 PROVIDS ~ INST~ ~ 0.00 5919.00 1020 587946 09/21/01 M Direo=or0 Bernard 550 Refund: Check - Cancel 0.00 90.00 1020 587947 09/21/01 M Dove, S~efan~e 550 Refund: Check - Cancel 0.00 70.00 RUE DATE 09/21/01 TI~,~ 08:02:16 - FINANCIAL A~ING ..3 09/21/01 CITY OF CUPERTINO PAGE 4 ACCOtA~ITIIqG PERIOD: 3/02 CHECK REGISTER - DISBURSE~IIENT FUND SELECTION CRITERIA: ~gansact.crane_da~e between "09/17/2001" end '09/21/2001" FU~D - 110 - GEIJERAL ~ C~SE ACC'~ CHECK NO ISSUE DT .............. V~NDOR ............. I:'UND/DEPT ..... DESCRIPTION ...... SAI,~S TAX At4OUNT 1020 587948 09/21/01 M2002 EAST pA/,OAT.,TO RECRSATZO 5600000 REFUND OVERPYH'I~ PICNIC 0.00 83.00 1020 587949 09/21/01 239 ~T.~CTRICAI~ DISTRIBUTORS 1108830 FY 2001-2002 OPEN PURC 0.00 659.92 1020 587950 09/21/01 251 EV~NS ~ V./~T.E,,EY SPRAY 1108315 TURF SPRAY CRBEDSIDE P 0.00 3920.00 1020 587950 09/21/01 251 BVAIqS ~SST V~E,.,7.,EY SPRAY 1108315 TURF SPRAY JOIJ.,I~4R, N PK 0.00 4620.00 1020 587950 09/21/01 251 ~'d*AI~S NEST V~?~¥ SPRAY 1108303. I~B~ORIAT~ pKTREE SPRAY 0.00 1500.00 1020 587950 09/21/01 251 EVANS M~ST V~T,~,~Z SPRAY 1108314 PORTAl, PK TREE SPRAYZN 0.00 800.00 TOTAL C~CK 0.00 10840.00 1020 587951 09/21/01 1949 EVENT SERVICES 1108503 RENTAL 8/1-8/31/01 0.00 102.60 1020 587951 09/21/01 1949 EV]~%'T SERVICES 5208003 RENTAL 8/1-8/31/01 0.00 162.00 1020 587956 09/21/01 M FRITZ, LINDA 580 Refund: Check - S~v~4ER 0.00 11.00 1020 587957 09/21/01 275 SUSAN FUKUBA 5805449 SERVICE AGREEMENT FOR 0.00 4440.60 1020 587958 09/21/01 M Faber, Bea 550 Refund: Check - Cancel 0.00 45.00 1020 587959 09/21/01 M Fujii, Hayami 550 Refund: Check - cancel 0.00 45.00 1020 507960 09~21/01 281 GARDENI~ 6308840 FY 2001-2002 OPEN PURC 0.00 122.34 1020 587961 09/21/01 291 GOLD~I TOUCH LANDSCAPING 1108314 TIME/MAT~RIALS 0.00 2691.00 1020 587962 09/21/01 2201 ~NA GOPAL 5006349 PRESCHOOL TOYS 0.00 83.32 R~i* DAT~ 09/21/01 TII~IE 08:02:17 - FINANCIAL .R~CCOUETZNG 09/21/01 CITY OF CUPERTINO PAG~ 5 ACCOUNTING PERIOD: 3/02 CHECK REGISTER - DISBURSEMENT ~ FU-~D - 110 - GENEBA-~ F~ CASH ACCT CHECK NO ISSUE DT .............. VENDOR ............. FUND/DEPT ..... DESCRIPTION ...... SALES TAX AI40~T 1020 587965 09/21/01 301 GRAYBAR ELECTRIC CO INC 1108501 SUPPLIES P.0.15383 0.00 60.03 1020 58?965 09/21/01 301 GRAYBAR ELECTRIC CO INC 1108505 pARTS/SUPPLIES P.O.108 0.00 152.39 TOTAL CHECK 0.00 222.42 1020 587966 09/21/01 M GUARINO, JOHN 580 R~FU~D 111949 & 111950 0.00 5.60 1020 587967 09/21/01 M HADAR, ESTHER 580 Refund: Check - SU~4ER 0.00 22.00 1020 587968 09/21/01 M HALL, P~BECCA 580 REFUNDS 111961 & 11195 0.00 17.00 1020 587969 09/21/01 M HAUGEN, D~NISE 580 Refund: Check - FALL. 0,00 30.00 1020 587970 09/21/01 325 DANIEL HEDD~N 1106265 SERVICE AGREE~d~NT FOR 0.00 100.00 1020 587971 09/21/01 M2002 UEFN~R, STARK & MAROIS, 1108601 S~MINAR 10/12 M.FUT_.b~ 0,00 175.00 1020 587971 09/21/01 M2002 HEFNER, STARK & MAROIS, 1101500 SEMINAR 10/12 C.KILIAN 0.00 175.00 TOTAL CHECK 0,00 350.00 1020 587972 09/21/01 M2002 H~4BP~E, TODD 1108201 EXAM 0.00 25.00 1020 587973 09/21/01 1410 HILLyARD 5606620 SUPPLIES 0.00 674.62 1~* 587974 09/21/01 M HODGSON, MAS[~4I 580 Refund: Check - S~V~4ER 0.00 11.00 1020 88?975 09/21/01 2064 HOWARD G HOFF ~. 1104400 SERVIC~ AGREeMenT FOR 0.00 90.00 1020 5879?6 09/21/01 334 HOME D~POT/GSCF 5606640 SUPPLIES P.0.21003 0.00 44.20 1020 587977 09/21/01 1898 HORIZO~ 1108303 FY 2001-2002 OPEN PURC 0.00 557.34 1020 587977 09/21/01 1898 HORIZ(H4 1108314 FY 2001-2002 OPEN PURC 0.00 185.11 1020 587977 09/21/01 1898 HORIZON 1108303 FY 2001-2002 OPEN PU~C 0.00 23.61 TOTAL CHECK 0.00 746.06 1020 887978 09/21/01 M HORNG, SUIYIEH 580 Refund: Check - SU~4ER 0.00 5.50 1020 5879?9 09/21/01 M2002 ESX~H, Olta~CE 2200000 TLTREFU-~D 0.00 100.00 1020 587980 09/21/01 M HSU, KAI-L! 580 Refund= Check - SU~4ER 0.00 24.80 1020 587981 09/21/01 M HU, BO S80 Refund: Check - SU~4ER 0.00 11.00 1020 88?982 09/21/01 M HUANG, YVO~S 580 P~fund: Check - FALL. 0.00 72.00 1020 55?983 09/21/01 M ~RLEY, VlVIAR 580 Refund: Check - Ee~urn 0.00 500.00 1020 58?984 09/21/01 M Eein=z0 Dennis 550 Refund: Check ~ cancel 0.00 90.00 1020 587985 09/21/01 M Ho~c, Jane 550 Refund: Check - Cancel 0.00 45.00 1020 587986 09/21/01 341 ICE (~IALET 5806449 SERVICE AGR~E~4~T FOR 0.00 3154.00 DATE 09/21/01 TTr,~ 08:0,2:18 - F'FNANCIAL Af~-'OF, E~FTNG 09/21/01 CI~"/ OF CUPERTINO PAGE 6 ACCOUNTING PERIOD: 3/02 CHECK REGISTER - DISBURSF~ SELECTION CRITERIA: =ransect.trans_date between "09/17/2001" and "09/21/2001' FUND - 110 - GEN~P~ FUND CASH ACCT CHECK NO ISSUE DT .............. VENDOR ............. FUND/DEPT ..... DESCRIPTION ...... SAGES TAX AMOUNT 1020 587987 09/21/01 2181 IMSA:INT'L MUNICIPAL SIG 1108601 ~Aq~UAL DUES #18762 GUA 0.00 40.00 1020 587988 09/21/01 2181 IMSA:INT'L ~JNICIPAL SIG 1108830 #25243,#30558,#53213 0.00 120.00 1020 587989 09/21/01 1242 INSTY-PRINTS 1104310 LOGO ENV WITH AND WITH 0.00 4261.98 1020 587990 09/21/01 M JAIN, SUNIL 580 Reftl/ld: Check - SUeR 0.00 5.50 1020 587991 09/21/01 M JAIN, USHA 580 Refund: Check - SU~ER 0.00 5.50 1020 587992 09/21/01 M JANASW~MY, DURGA 580 Refund: Check - SUT~4ER 0.00 11.00 1020 587993 09/21/01 M2002 JIM KRAUSE ROOFING 1100000 REFUND DUPL BLICENCE P 0.00 94.00 1020 587994 09/21/01 2285 KATHRIq4 KELLY JOESTEN 1106265 SERVICE AGRE~MENT FOR 0.00 112.50 1020 587995 09/21/01 M JOHNSON, SANDY 580 Refund: Check - FALL. 0.00 75.00 1020 597996 09/21/01 M2002 JONES, K~T 5806449 SU-PPLIRS 0.00 86.35 1020 587997 09/21/01 M JOSHI, ~NOK 580 Refund: Check - FALL. 0.00 49.00 1020 587998 09/21/01 M Jerdee, Alla 650 Refund: Check - Cancel 0.00 45 1020 587999 09/21/01 M KANG, SEONGSUK 580 Refund: Check - SU)e4ER 0.00 22.00 1020 588000 09/21/01 )42002 KERN COUNTY ASSBSSORtS O 1104300 R~CURDEN~S DOCU. MANUA 0.00 51.84 1020 588001 09/21/01 M2002 KIM, EUN JO0 2200000 TLT REFUND 0.00 100.00 1020 588002 09/21/01 M KIM, SHARON 580 Refund: Check - S~4ER 0.00 6.20 1020 588003 09/21/01 M KlM, YOUNGOCK 580 Refund: Check - SU~ 0.00 11.00 1020 588004 09/21/01 M KOBO, MIYO 580 Refund: Check - FALL, 0.00 32.50 1020 588005 09/21/01 )42002 KOKILA'S KITCHEN 5506549 I~T~TIONAL LUNCHEON 0.00 367.20 1020 588006 09/21/01 1927 C4~Y KOR/~S 1104530 EXPENSES 9/11-9/12 0.00 284.93 1020 588007 09/21/01 N ~RIS]{RAN, S~YA 580 Refund: Check - SUeR 0.00 11.00 1020 588008 09/21/01 2143 VICTOR R ~UCK~NBERG 5606620 SERVICE AGREEmeNT FOR 0.00 322.00 1020 588009 09/21/01 M KUMAR, LAY~4I 580 Refund: Check - SL~4~R 0.00 11.00 1020 588010 09/21/01 2302 I~YOOB3 /NC. 1108101 SERVICE AGREE~'T FOR 0.00 13532.06 1020 588010 09/21/01 2302 I(YOOB3 /NC. 1108101 SERVICE AGREEMENT FOR 0.00 160.46 TOTAL CHECK 0.00 13692.52 1020 588011 09/21/01 M LA1, KIJANG-CHU~G 580 Refund: Check - SUI~1~R 0.00 16 RUN DATE 09/21/01 TIME 08:02:19 - FINANCIAL ACCOUNTING 09/21/01 CITY OF CUPERT~'NO ACCO~qTING PERIOD: 3/02 CHECK REGISTER - DISBURSEMENT FUND 1020 588012 09/21/01 M2002 LAG, MARL~qE 2200000 TLTREFUND 0.00 100.00 1020 588013 09/21/01 )42002 LAZO, JEFF 5806449 LUNCH H/AQUATIC STAFF 0.00 88.61 1020 588014 09/21/01 M LEE, ANDreA 580 Refund: Check - SI~94ER 0.00 114.50 1020 588015 09/21/01 M LEE, JOO-YEON 980 Refund: Check - SOT~4ER 0.00 11.00 1020 588016 09/21/01 M LEE, K~NNETH 580 Refund: Check - S'u~4~ER 0.00 11.00 1020 588017 09/21/01 396 PHIL~ZP M LENIHAN 5806449 SERVICE AGREEMENT FOR 0.00 262.50 1020 588018 09/21/01 M LI, BRIAN 880 Refund: Check - S~vf4ER 0.00 5.50 1020 588019 09/21/01 M LI, XIAOPZNG 980 Refund: Check- ~R 0.00 11.00 1020 588020 09/21/01 400 LIFETIME TENNIS INC 9706450 SERVICE AGRBEV~NT FOR 0.00 27873.71 1020 588021 09/21/01 2357 LIGHT HOUSE 6308840 PARTS/SUPPLZES 0.00 322.96 1020 588022 09/21/01 M LIU, BIYI~ 580 Refund: Check - SI~]ER 0.00 16.50 1~ 588023 09/21/01 M LIU, CHANGMING 580 Refund: Check ~ SU~4ER 0.00 11.00 1020 588024 09/21/01 404 LONGS DRUG STORES #260 5806349 SUPPLIES 0,00 10.28 1020 588025 09/21/01 408 LOS GATOS ~AT & SMOKEHO 5606620 FY 2001-2002 OPEN PURC 0.00 1890.00 1020 588025 09/21/01 408 LOS GATOS MEAT & SMOKEHO 5606620 FY 2001-2002 OPEN PURC 0.00 489.91 1020 588025 09/21/01 408 LOS GATOS ~J%T & SMOKEHO 5506620 FY 2001-2002 OPEN PURC 0.00 2977.24 TOTAL CHECK 0.00 5357.15 1020 588026 09/21/01 M LU, EMILY 580 Refund: Check - ~ 0.00 33.00 1020 588027 09/21/01 M baPres, Anthony 550 REFUNDS 9077 & 9078 0.00 90.00 1020 588028 09/21/01 M Lawson, MarJor£e 550 Refund: Check - Cancel 0.00 36.00 1020 588029 09/21/01 M Lazoottn0 Sarah 550 Refund: Check - cancel 0.00 45.00 1020 588030 09/21/01 M Lederer, Lee 550 Refund: Check - cancel 0.00 45.00 1020 588031 09/21/01 M Love, John 550 Refund: Check - cancel 0.00 90.00 1020 588032 09/21/01 M Low, Betty 550 Refund: Check - cancel 0.00 45.00 1020 588033 09/21/01 2481 M & N INTERNATIONAL 5806349 SUPPLIES P.O.16882 0.00 287.05 1020 588034 09/21/01 M MA, NEIMAH 580 Refund: Check - STJ~O~,q 0.00 16.50 1¢ 588035 09/21/01 1358 MATTHENBBNDER & COMPANY 1101500 SUBSCRIPTION 0.00 297.21 DATE 09/21/01 TIME 08:02:20 - FINANCIAL 09/21/01 CITY OF CUPERTINO PAGE 8 ACCOUNTING PERIOD: 3/02 CHECK REGISTER - DISBURSEMENT FUND SELECTION CRITERIA: ~ransact'.~'rans_da~e be~'ween "09/17/2001" and "09/21/2001" FUND - 110 - GENERAL FUND CASH ACCT CHECK NO ISSUE DT .............. VENDOR ............. FUND/DEPT ..... DESCRIPTION ...... SALES TAX AMOUNT 1020 588037 09/21/01 1292 MCI WORLD~ 1101201 Y1326426 AUG2001 SERVI 0.00 0.97 1020 588037 09/21/01 1292 MCI WOP~ 1107301 Y1326426 AU~2001 SERVI 0.00 13.16 102O 588037 09/21/01 1292 MCI WOR~ 1101200 Y1326426 AUG2001 SEEVI 0.00 1.57 1020 588037 09/21/01 1292 MCI WOP~ 1108503 Y1326426 AUG2001 SERVI 0.00 23.60 1020 588037 09/21/01 1292 MCI WORLI~ 1104300 Y1325426 AUG2001 SEEVI 0.00 6.05 1020 566037 09/21/01 1292 MCI WORLDCOM 1101500. Y1326426 AUG2001 SERVI 0.00 5.45 1020 580037 09/21/01 1292 MCI WORLDC0~ 1104000 Y1326426 AUG2001 SERVI 0.00 5.53 1020 588037 09/21/01 1292 MCI EORLDC0~ 5606620 Y1326426 AUG2001 SERVI 0.00 16.28 1020 588037 09/21/01 1292 MCI WOPJ~ 1108501 Y1326426 AUG2001 SERVI 0.00 5.77 1020 588037 09/21/01 1292 MCI WORLDCOM 1103500 Y1326426 AUG2001 SERVI 0.00 6.23 1020 50803T 09/21/01 1292 MCI WOI~ 1101200 Y1326426 A~K~2001 RE'VI 0.00 1.02 1020 588037 09/21/01 1292 MCI WORLD~ 1104100 Y1326426 AUG2001 SERVI 0.00 12.51 1020 568037 09/21/01 1292 MCI WOPJ~ 1108001 Y1326426 AIK~2001 SERVI 0.00 28.74 1020 588037 09/21/01 1292 MCI NORLDCO~ 1103300 Y1326426 AUG2001 SERVI 0.00 8.76 1020 588037 09/21/01 1292 MCI WORLDCOM 1108602 Y1326426 AUG2001 SERVI 0.00 2.93 1020 588037 09/21/01 1292 MCI WORLDCOM 1104400 Y1326426 AUG2001 SERVI 0.00 0.93 1020 588037 09/21/01 1292 MCI ~ORLDCOM 1105500 Y1326426 AUG2001 S~RVI 0.00 11.06 1020 588037 09/21/01 1292 MCI WORLD~ 1104530 Y1326426 AUG2001 SERVI 0.00 33.30 1020 588037 09/21/01 1292 MCI WO~ 5706480 Y1326426 AUG2001 SERVI 0.00 6.53 1020 588037 09/21/01 1292 MCI WORLDCOM 1107501 Y1326426 AUG2001 SERVI 0.00 15.12 1020 588037 09/21/01 1292 MCI HOP~ 1104510 Y1326426 AU~2001 SRRVI 0.00 13.20 1020 588037 09/21/01 1292 MCI WORLDCON 1106100 Y1326426 AUG2001 SERVI 0.00 ~ 1020 588037 09/21/01 1292 MCI WORLD~ 1106265 Y1326426 AUG2001 SERVZ 0.00 26 .... 1020 588037 09/21/01 1292 MCI #ORL~ 6104800 Y1226426 AUG2001 SERVI 0.00 8.66 TOTAL CHECK 0.00 260.67 1020 588038 09/21/01 439 MICHAELS #13333 5806349 SUPPLIES P.O.15891 0.00 105.16 1020 558039 09/21/01 444 MINTONtS L~ER 1108303 SUPPLIES P.O.15552 0.00 13.74 1020 588039 09/21/01 444 MINTO~E L~ER 1108312 SUPPLIES P.O.16124 0.00 32.51 1020 588039 09/21/01 444 MINT0~'S LURER 1108303 SUPPLIES P.O.15700 0.00 27.55 TOTAL OIECK 0.00 73.80 1020 588040 09/21/01 M MISKO, ~BAN 580 Refund: Check - FALL. 0.00 96.00 1020 588041 09/21/01 447 MISSION U~qIFORM SERVICE 1108201 FY 2001-2002 OPEN PURC 0.00 89.76 1020 588041 09/21/01 447 MISSION ONIFOEN SERVICE 1108201 FY 2001-2002 OPEN PURC 0.00 89.76 1020 588041 09/21/01 447 MISSION ONIFOEN SERVICE 1108201 FY 2001-2002 OPEN PURC 0.0O 3.95 1020 588041 09/21/01 447 MISSION ONIFORM SERVICE 1108201 FY 2001o2002 OPB~q PURC 0.00 89.76 TOTAL CHECK 0.00 273.23 1020 588042 09/21/01 M HOHA~4ED, JAN~mi-£E 580 Refund: Check - S~4~R 0.00 11.00 1020 586043 09/21/01 456 MONARCH TRUCK CENTER 6308840 PARTS/SUPPLIES 0.00 212.50 1020 588044 09/21/01 465 MOUNTA/N VIEW GARDEN C~N 1108303 FY 2001-2002 OPEN PURC 0.00 24.27 1020 588044 09/21/01 465 MOUNTAIN VIEN GARDEN C~ 1108303 FY 2001-2002 OPEN PURC 0.00 495.24 1020 588044 09/21/01 465 MOUNTAIN VIEW GARDEN CEN 1108312 FY 2001-2002 OPEN PURC 0.00 29.11 TOTAL CHECK 0.00 548.~' EON ~TE 09/21/01 TIHE 08=02:21 - FIN~CI~ ACCOUNTIMO 08/21/01 CIT~ OF CUP~RTIN0 PAGE ACCOUNTING PERIOD: 3/02 CHECK REGISTES - DISBURSEMENT FUND CASH ACCT CHECK NO ISSUE DT .............. VENDOR ............. FUND/DEFT ..... DESCRIPTION ...... SALES TAX 1020 588045 09/21/01 466 MPA DESIGN 4209119 SERVICE AGREEMENT FOR 0.00 2027.33 1020 588046 09/21/01 M MUKHOP~DHYAY0 MEENAKSHI 560 Refund: Check - S~q~4~R 0.00 11.00 1020 588047 09/21/01 M Mahoney, Michael 550 Refund: Check - cancel 0.00 45.00 1020 585048 09/21/01 M Men, Li-Miin 550 Refund: Check - cancel 0.00 45.00 1020 588049 09/21/01 M Miller, Francoise 550 Refund: Check - cancel 0.00 45.00 1020 588050 09/21/01 N Mix, Violet 550 Refund: Check - cancel 0.00 45.00 1020 558051 09/21/01 N NANDAJ~3DI, SHARDA 580 Refund: Check - SUeR 0.00 5.50 1020 588052 09/21/01 479 NATURES WOOD 5606620 FY 2001-2002 OpeN PURC 0.00 335.58 TOTAL CHECK 0.00 677.16 1020 586053 09/21/01 M2002 NCTLC 1106407 2001 F.DAY REO.FOR 6 0.00 450.00 1020 588054 09/21/01 1550 ADONIS L NECESITO 1103500 SERVICE AGREEMENT FOR 0.00 525.00 10Z 588055 09/21/01 N NEJAT, PA~IBA 580 REFUNDS 112279/112280 0.00 535.00 1020 588056 09/21/01 480 ~ELS~N ~NGINEERING 4239222 S~RVICE AGREEMENT FOR 0.00 15900.00 1020 585057 09/21/01 485 N~I~4AN TRAFFIC SIGNS 2709405 FY 2001-2002 OPEN PURC 0.00 196.33 1020 588058 09/21/01 M NINO, Y~ONG-KANG 580 Refund: Check - FALL C 0.00 84.00 1020 588059 09/21/01 2478 T~MI NORMAN 5606620 SERVICE AGRE~NT FOR 0.00 78.V5 1020 568060 09/21/01 1358 NORTHERN TOOL & EQUIPMEN 1108507 pARTS/SUPPLIES 0.O0 46.51 1020 588061 09/21/01 192 NOVACAR~ OCCUPATIONAL ER 1104510 pRE-~pLOY~NT PHYSICA 0.00 75.00 1020 588061 09/21/01 192 NOVACARE OCCUPATIONAL HE 1104510 PRS-EMPhOYI~NT PHYSICA 0.00 205.00 1020 588061 09/21/01 192 NOVA~AR~ OCCUPATIONAL HE 5806449 PPD TUBERCULOSIS CHESS 0.00 15.00 1020 588061 09/21/01 192 NOVACARE OCCUPATIONAL HE 5808449 pPD TUBERCULOSIS OOPAL 0.00 15.00 TOTAL CHECK 0.00 310.00 1020 588062 09/21/01 M O~LEARy, CYNTHIA 580 Refund: Check - SU~4~ER 0.00 11.00 1020 585063 09/21/01 499 DHEBIE O'NEILL 5606620 SERVICE AGHEEM~NT FOR 0.00 450.00 1020 588084 09/21/01 495 OFFICE HELPER 1106100 SUPPLIES 0.00 282.52 1020 558054 09/21/01 495 OFFICE HE~.PER 1108601 SUPPLIES 0.00 12.76 1020 588064 09/21/01 495 OFFICE H~.PER 5208003 SUPP~.IES 0.00 21.44 TOTAL CH~CK 0.00 316.72 1020 585065 09/21/01 1190 RONA~.~) OT.~S 1103500 SERVICE ~T FOR 0.00 212'.50 RUN DATE 09/21/01 TXME 08:02:21 o FINANCIAL SELECTION CRITERIA: transact.trans_date between "09/17/2001" and "09/21/2001" 1020 588067 09/21/01 500 OPE~ATIN~ ENGINEEI~ PUB 1104510 H & W RETIREE SEPT2001 0.00 784.00 1020 · 568073 09/21/01 511 PACIFIC BELL 1101500 . S~V 9/7-10/6 0.00 247.58 1020 588073 09/21/01 511 PACIFIC BELL 5606620 SERV 9/7-10/6 0.00 90.32 1020 588072 09/21/01 511 PACIFIC BELL 1108501 SERV 9/7-10/6 0.00 90.32 1020 588073 09/21/01 511 PACIFIC BELL 1108504 SREV 9/7-10/6 0.00 495.14 1020 588073 09/21/01 511 PACIFIC ~T~. 1108505 SERV 9/7-10/6 0.00 90.32 1020 588073 09/21/01 511 PACIFIC ~ET.T, 5708510 SERV 9/7-10/6 0.00 90.33 1020 588073 09/21/01 511 PACIFIC BELL 1108501 SERV 9/7-10/6 0.00 247.55 1020 588073 09/21/01 511 PACIFIC BELL 1108503 SEEV 9/7-10/6 0.00 RUN DATE 09/21/01 TI~G~ 08:02:23 - FIN~/qCIAL ACCOUNTING 09/21/01 CITY OF CUPERTINO PAGE 11 ACCOUNTING PERIOD: 3/02 CHECK REGISTER - DISBURSEMENT FUND ~ - 110 - G~NERAL FUND CASH ACCT CHECK NO ISSUE DT .............. VENDOR ............. FUND/DEPT ..... DESCRIPTION ...... SALES TAX ~t4OUNT 1020 888074 09/21/01 520 PAPERD~RECT INC 5806449 SUPPLIES P.0.16756 0.00 138.41 1020 580074 09/21/01 520 PAPERDIRECT INC 5806349 SUPPLIES P.O.16756 0.00 114.45 TOTAL CHECK 0.00 2E2.86 1020 58807E 09/21/01 M PARK, TAE-YUN 880 Refund: Check - SU~4ER O.00 11.00 1020 588076 09/21/01 M PASS, KATHE 580 Refund: Check - Rental 0.00 100.00 1020 588077 09/21/01 M PENA, VINCE 580 Refund: Check - S~4ER 0.00 5.50 1020 580078 09/21/01 526 PENINSULA DIGITAL IMAGIN 110 LRG FORMAT BOND COPY 0.00 289.86 1020 989078 09/21/01 526 P~XNSULA DIGITAL IMAGIN 1108101 CITY ~ PLANS 0.00 342.63 TOTAL CHECK 0.00 632.49 1020 588079 09/21/01 531 PEPSI-COLA COMPANY 5806249 V~NDING PROG~4 0.00 331.26 1020 588079 09/21/01 531 PEPSI-COLA COMPANY 5806349 PROGRAM SUPPLIES 0.00 90.00 TOTAL CH~CK 0.00 421.26 1020 E88080 09/21/01 548 JEFF PISERCHIO 5606640 GOLF CODT~E CO--CT 1 0.00 1944.00 1020 588081 09/21/01 M PRAKASH, SHOB}IA 580 REFUNDS 111898 & 11189 0.00 11.00 1L 588082 09/21/01 509 PW SUPERMARKETS INC ES06349 SUPPLIES P.O.23357 0.00 22.58 1020 588082 09/21/01 509 PW SUPERMARKETS INC 1106342 SUPPLIES P.O.23344 O.00 17.20 1020 888082 09/21/01 509 PE SUPERMARKETS INC 1106342 SUPPLIES P.O.23349 0.00 22.51 1020 988082 09/21/01 509 PE SUPERMARKETS INC 5006349 SUPPLIES P.O.23354 0.00 31.43 1020 588082 09/21/01 509 ~ SUPKRMARKETS INC 5806349 SUPPLIHS P.O.23345 0.00 25.20 1020 588082 09/21/01 509 PNSUPERMARKETS /NC 1106342 SUPPLIES P.0.23390 0.00 15.00 1020 588082 09/21/01 509 PW SUPERMARKETS INC 1106342 SUPPLIES P.O.23347 0.00 9.95 1020 588082 09/21/01 509 PW SUPBRMARKETS INC 5806349 SUPPLIES P.O.23344 0.00 32.40 1020 588082 09/21/01 509 P~ SUPERMARKETS INC 5806349 SUPPLIES 0.00 13.22 1020 588082 09/21/01 509 PW SUPBRMARi~TS INC 1106342 SUPPLIES P.O.22380 0.00 19.10 1020 588082 09/21/01 509 PW SUPERMARKETS INC 1108342 SUPPLIES P,0.23380 0.00 23.57 1020 588082 09/21/01 509 PW SUPERY~RKETS INC 5806349 SUPPLIES P.O.23343 0.00 47.70 TOTAL C~CK 0.00 279.88 1020 888083 09/21/01 M Parsley, Evelyn 550 Refund: Check o Cancel 0.00 46.00 1020 S88084 09/21/01 M Perry, Mildred 550 Refund: Check - cancel 0.00 90.00 1020 588085 09/21/01 N Pe=ersen, Elizabeth (Bet 550 Refund: Check - cancel 0.00 45.00 1020 588086 09/21/01 N Petersen, Elizabeth (Bet 550 RE~JND 9131,9132,9133 0.00 375.00 1020 588087 09/21/01 1895 QUALITY SPORTS INC ' 5606640 GOLF COU~E SUPPLIES 0.00 59.29 1020 588088 09/21/U1 M RAIH~AI~IS~qAN, PARTHASAR 500 Refund: Check - ~ 0.00 11.00 1020 588089 09/21/01 1406 HAINES CHEVORLET 6308840 FY 2001-2002 OP~ PURC 0.00 88.30 RUN DATE 09/21/01 TZM~ 08:02:24 - FZNAHCZAL ACCOUNTING 09/21/01 CITY OF CUPERTINO PAGE 12 ACCOUNTING PERIOD: 3/02 CHECK REGISTER - DISBURSEMENT FUND SELECTION CRITERIA: transact.trans_da~e between N09/17/2001" and '09/21/2001" F~]ND - 110 - GENERAL ~ CASH ACCT CHECK NO ISSUE DT .............. V~DOR ............. FUND/DEPT ..... DESCRIPTION ...... SALES TA~ AMOUNT 1020 588090 09/21/01 M RAMAN, A~IL 580 Refund: Check - SU~4SR 0.00 11.00 1020 505091 09/21/01 581 P, ELIABLE 1104300 S~JPPLIES P.O.12083 0.00 115.37 1020 588091 09/21/01 581 RELIABLE 1104300 SUPPLIES P.0.12083 0.00 22.13 TOTAL CHECK 0.00 137.50 1020 588092 09/21/01 M REN, BAILAN 580 Refund: Check - FALl. 0.00 90.00 1020 588093 09/21/01 1071 REPUBLIC ELECTRIC 1108830 TIME~MATERIALS 0.00 2480.00 1020 588093 09/21/01 1071 REPUBLIC ELECTRIC 4209541 PUBLIC WORKS C0~TI~J&CT 0.00 121913.00 TOTAL CHECK 0.00 124393.08 1020 988094 09/21/01 2482 RH! CONSULTING 6109865 CIP DATABASE CONSULT 9 0.00 1600.00 1020 588094 09/21/01 2482 RHI CONSULTING 6109865 CIP DATABASE CONSULT 8 0.00 700.00 TOTAL CHECK 0.00 2300.00 1020 588095 09/21/01 602 ROYAL COACH TOU'~S 5506549 TRANSPORTATION 9/05/01 0.00 556.41 1020 588096 '09/21/01 1417 JENNIFER ROZWOOD 5606620 SERVICE AGREEMENT FOR 0.00 100.00 1020 588097 09/21/01 M Ramsauer, Alice 550 REI~JNDS 9126 & 9127 0.00 45.00 1020 588098 09/21/01 M Reynard, Brian 550 Refund: Check - Rental 0.00 50 1020 588099 09/21/0~ M Robinson, LaVerne 650 Refund: Check - cancel 0.00 45.00 1020 588100 09/21/01 M Roaanber~er, Vivian 550 Refund: Check - cancel 0.00 45.00 1020 588101 09/21/01 M RuC~enberg, Gloria 560 Refund: Check - Cancel 0.00 36.00 1020 588102 09/21/01 M SAHA, MAUS~4I 580 Refund: Check - Rental 0.00 100.00 1020 588103 09/21/01 621 SAN JOSE MERCURY CLASSIF 1104610 MTC WORKER AD 8/19 0.00 776.36 1020 588103 09/21/01 621 S~N JOSE MERCURY CLASSIF 1104510 ASST PLNR AD 8/26 0.00 840.64 TOTAL CHECK 0.00 1617.20 1020 588104 09/21401 626 SANTA CLARA CO DEPT OF R 1102100 CITATIONS 7/2001 0.00 2435.00 1020 598105 09/21/01 628 SANTA C~%RA CO~N~"f SH~RI 1102100 ~AW ENFORCEMENT SSNVIC 0.00 471375.10 1020 588106 09/21/01 633 SANTA CLArA COUNTY SH~RI 5606620 FY 2001-2002 OPEN PURC 0.00 1060.76 1020 588106 09/21/01 633 SANTA CLAHA COUNTY SH~RI 5606620 FY 2001-2002 OPEN PURC 0.00 954.69 1020 588106 09/21/01 633 SANTA CLArA COUNTY SH~RI 5606620 FY 2001-2002 OPEN PURC 0.00 609.29 1020 568106 09/21/01 633 SANTA CLARA COUNTY SH~RI 5606620 FY 2001-2002 OPSN PURC 0.00 1642.46 1020 588106 09/21/01 633 SANTA CLAEA ~ SRERI 5606620 FY 2001-2002 OPEN PURC 0.00 928.19 TOTAL CHECK 0.00 5195.39 1020 588107 09/21/01 M S~RS, ANN 580 REI~JNDS 112474 & 11247 0.00 22.00 1020 588108 09/21/01 639 SAVIN CORPOI~ATION (COPIE 1104310 #1-5060106 USAGE TO 9/ 0.00 194 ~ RUE DATE 09/21/01 TIME 08:02:24 - FINANCIAL ACCOUNTING 09/21/01 CITY OF CUPERTINO PA~E 13 ACCOU~ITING PERIOD: 3/02 CHECK REGISTER - DISBURSEMEk'T FUND FUND - 110 - GENERAL FUND C~SH ACCT CHECK NO ISSUE DT .............. VENDOR ............. FUND/DEPT ..... DESCHIPTION ...... SALES 'TAX AMO~INT 1020 588109 09/21/01 2397 SAVZN CREDIT CORPO~ATION 1104310 ~E OCT2001 #4162665 0.00 137.64 1020 588110 09/21/01 640 SCA HYGI~ PA~E~ INC 1108303 FY 2001-2002 OPeN PUKe 0.00 189.56 1020 588110 09/21/01 640 SCA HY(;IEN~ PAPE~ INC 1108312 FY 2001-2002 OPEN PU~C 0.00 189.56 1020 588110 09/21/01 640 SCA HYGIENE PAPER INC 1108315 FY 2001-2002 OPeN PO~C 0.00 189.56 1020 888110 09/21/01 640 SCA HYGIENE PAPER INC 1108314 FY 2001-2002 OPEN P~C 0.00 189.57 1020 588110 09/21/01 640 SCA HYGIENE PAPE~ INC 1108302 FY 2001-2002 OPEN PU~C 0.00 189.56 TOTAL CH~CK 0.00 947.81 1020 588111 09/21/01 M SC}~ECKLOTH, SHIP.~EY 580 Refund: Check - S~R 0.00 11.00 1020 588112 09/21/01 M EC~NEIDEH, TOBI 580 Refund: Check - S%~4W~R 0.00 12.40 1020 585113 09/21/01 M ECH~CH~, SA~A 580 Refund: Check - ~ 0.00 11.00 1020 588114 09/21/01 M SH~, AZ~R 580 HEFUNDS 111503 & 11902 0.00 11.00 1020 588115 09/21/01 M SHAEMA, NIKH~L 580 Refund: Check - Ren=al 0.00 100.00 1020 588116 09/21/01 M EENI, SW~y-yAN 580 Ee~und: Check - E~ME~ 0.00 11.00 1020 588117 08/21/01 M SH~N, JOSEPHINE 580 Hefun~: Check - ~ 0.00 5.50 1L 588118 09/21/01 M SENE, EJ24A 580 Refund= Che=k - S~ 0.o0 11.00 1020 588119 09/21/01 1010 SOCIAL ADVOCATES FOR yOU 1102401 FAMIL¥/INDIV COCA, EEL S 0.00 7500.00 1020 588120 09/21/01 1954 SPHNEION CORPORATION 1108101 J.GEORGE W/E 9/2 0.00 1050.00 1020 586120 09/21/01 1954 SPH~ION CORPO~ATION 5208003 S.LESSAN W/E 9/2 0.00 448.88 TOTAL CHECK 0.00 1528.88 1020 588121 09/21/01 2484 EP~AY MA~T IX 2708404 SUPPLIES P.0.15359 0.00 164.86 1020 588122 09/21/01 M SRIVASTAVA, ~J~S~I 580 Refund: ChEek - S~ 0.00 11.00 1020 588123 09/21/01 M ST~DELMA~, CHRIS 580 Refund: Check - S~4E~ 0.00 11.00 1020 588124 09/21/01 1011 STATE BO~ OF ~IZAT 110 E~LEE/~]TAX P~EPAY AUQ2 0.00 7318.00 1020 588125 09/21/01 2369 ST~d~N GROVER & ASSOCIAT 2709449 SEHVICE AGR~IT FOR 0.00 23120.38 1020 S88125 09/21/01 2369 ST~VEN GROVEH & AS~OCIAT 2709449 SERVICE AGRE~NT FOR 0.00 4200.00 1020 588125 09/21/01 2369 STEV~NGHOV~R & ASSOCIAT 2709449 EENVICHAGNEENENT FOR 0.00 7350.00 1020 588125 09/21/01 2369 ST~V~IGROVER & ASSOCIAT 2709449 SERVICE AC4~V~NT FOR 0.00 44210.28 TOTAL CH~CK 0.00 78850.65 1020 588125 09/21/01 695 SYSCO FOOD SENVIC~S OF $ 5606620 FY 2001-2002 OPEN PURe 0.00 3532.70 1020 588126 09/21/01 695 SYSCO FOOD SERVICES OF S 5606620 FY 2001-2002 OP~ PURe 0.00 1412.91 1020 588126 09/21/01 595 SYSCO FOOD SNEVICSS OF S 5606620 FY 2001-2002 OPEN PuRe 0.00 98.45 1020 588126 09/21/01 695 SYSCO FOOD SSRVIC;S OF S 1106265 QCC SUPPLIES 0.00 85.13 1020 588126 09/21/01 695 SYSCO FOOD SERVICES OF E 5806249 VB~DING P~OGRAM 0.00 385.20 TC ~H~CK 0.00 5814.39 H~.~i DATE 09/21/01 TINE 08:02:25 - FINANCIAL ACCOU~/TING 09/21/01 CITY OF CUPERTINO PAGE 14 ACCO~T~TZNG PERIOD: 3/02 CHECK REGISTER - DISBURSEmeNT FUND SET.~CTION CRITERIA: transact.~rans_da=e between "09/17/2001" and "09/21/2001" CASH ACCT CHECK NO ISSUE DT .............. VENDOR ............. FUND/DEPT ..... DESCRIPTION ...... SALES TAX AMOUNT 1020 588127 09/21/01 M Sampson, Thelma (Doris) 550 Refund: Check - cancel 0.00 45.00 1020 588128 09/21/01 M Sperling, Jackie 550 Refund: Check - cancel 0.00 70.00 1020 588129 09/21/01 M Swanson, Jacqueline 550 Refund: Cheek - cancel 0.00 45.00 1020 588130 09/21/01 M TAHERI, MINA 580 Refund: Check - SUMMER 0.00 5.50 1020 588131 09/21/01 M TANG, CATHY 580 REI~JNDS 112044 & 11204 0.00 20.50 1020 588132 09/21/01 H TANG, JSMANE 580 Refund: Check - SUT~R 0.00 11.00 1020 585135 09/21/01 700 TARGET SPECIALTY PRODUCT 1108303 FY 2001-2002 OPEN PuRe 0.00 270.00 1020 588133 09/21/01 700 TARGET SPECIALTY PRODUCT 1108303 FY 2001-2002 OPEN PuRe 0.00 537.19 TOTAL CHECK 0.00 807.19 1020 588134 09/21/01 701 TARGET STOP, ES 5806349 SUPPLIES P.0.23802 0.00 51.70 1020 588134 09/21/01 701 TARGET STORES 5806349 SUPPLIES P.O.23003 0.00 47.46 1020 588134 09/21/01 701 TARGET STORES 5506549 SUPPLIES P.O.23894 0.00 6.69 1020 588134 09/21/01 701 TARGET STORES 5806349 SUPPLIES P.0.23801 0.00 51.70 1020 588134 09/21/01 701 TARGET STORES 5806349 SUPPLIES P.0.23804 0.00 19.58 TOTAL CH~CK 0.00 17' 1020 588135 09/21/01 M TESHI~A, KEIKO 580 REFDNDS 111658 & 11165 0.00 143.00 1020 588136 09/21/01 M TIEN, HUI SHAN (LU. AN 580 Refund: Check - SU)~R 0.00 11.00 1020 588137 09/21/01 M TIERNAN, TOKO 580 Refund: Check - SOI,~4ER 0.00 22.00 1020 588138 09/21/01 711 TOYS R US 5806349 SUPPLIES P.0.16884 0.00 479.70 1020 588139 09/21/01 724 TURF & INDUSTRIAL EQUIPM 6308840 FY 2001-2002 OPEN PURe 0.00 16.65 1020 588139 09/21/01 724 ~ & INDUSTRIAL E(2UIPM 560~640 CLUE CAR MODEL CARRyAL 0.00 6585.84 1020 568139 09/21/01 724 TU~F & INDUSTRIAL EQUIPM 5606640 SUPPLIES 0.00 14.11 1020 508139 09/21/01 724 TURF & INDUSTRIAL EOUIPM 5606640 SUPPLIES 0.00 107.90 TOTAL C~ECK 0.00 6724.50 1020 588140 09/21/01 M Thompson, Dolores 550 Refund: Check - cancel 0.O0 45.00 1020 588141 09/21/01 M Tsobanakis~ hymle 550 REF~ttlDS 9026 & 9027 0.00 300.00 1020 588142 09/21/01 1578 ~H~ITBD E~NTAL~ 1108321 ~IpPLIES P.O.15381 0.00 159.13 1020 588143 09/21/01 2226 ~ITBD RENTALS#145/HZGHW 2708404 SUPPLIES P.O.15368 0.00 160.48 1020 588144 09/21/01 738 VALleY OIL COMPANY 6308840 FY 2001-2002 OPEN PURC 0,00 4760.71 1020 588144 09/21/01 738 V~T.T.~y OIL COMPANY 6308840 CReDIT ON hAST S'I'T4T 0.00 -174.57 TOTAL CHECK 0.00 4586.14 1020 586145 09/21/01 M VANTY, SUVARRA 580 Refund: Check - FALL. 0.00 9. R~ DATR 09/21/01 TIRE 08:02:26 - FI~CIAL ACCOUNTISU 09/21/01 CITY OF CUPERTINO RAGE 15 ACCOUNTING pF, RIOD: 3/02 C~ECK REGIS/~R - DISBURSB~NT FU~JD ~H AC~ ~CK NO ISS~ ~ .............. ~R ............. ~/D~ ..... DES~I~ION ...... S~S T~ ~ 1020 588146 09/21/01 310 %~RIZON WIRBI~SS (FOiU4ER 1105501 #308957246 8/5-9/4 0.00 34.56 1020 588147 09/21/01 745 %~4I INC 1103500 ECOHAB SYSTEM ~ ACCE 0.00 6321.24 1020 508147 09/21/01 745 VMI INC 6109864 SC$u~ PR02 D SC~ CON 0.00 3594.24 ' 1020 588147 09/21/01 745 VMI INC 1103500 SOWY DSR-1500 WITH AHA 0.0O 8539.56 1020 588147 09/21/01 745 V~4I /NC 1103500 ECOI~ SYSTF~4 ~ ACC~ 0.00 11090.52 1020 588147 09/21/01 745 VMI INC 1101201 CINEMA% SU~DOWN 0.00 1827.80 TOT~ CHEC~ 0.00 31373.36 1020 580146 09/21/01M2002 W~t~.~Ro BILLY 5506549 OVRP~q4TZJU3~A~A~IP 0.00 175.00 1020 588149 09/21/01 757 JOYCE WATERMAN 5606620 SERVICE AGRW~qT FOR 0.00 270.00 1020 588150 09/21/01 761 WBD~L~/BR BAkeRy 5606620 FY 2001-2002 OPEN P~C 0.00 260.25 1020 588150 09/21/01 761 WBDE~ B~y 560662O FY 2001-2002 OPEN PURC 0.00 438.18 TOTAL C~CK 0.00 698.43 1020 588151 09/21/01 782 ~IGEL MEC~IC~ 5606600 RBPAIR L~J~KY EVAPORA/~ 0.00 1673.86 1020 568152 09/21/01 779 REST-LITH SUPPHY CO INC 1108830 HIgH ~SS'tJRE SODI~M 0.00 1551.31 1020 588152 09/21/01 779 WEST-LITE SUPPLY CO INC 1108830 HIGH PRESSURE SODIUM 0.00 6119.80 10r'~' 568152 09/21/01 779 WEST-LIT S~PPHY CO INC 1108830 HIGH I~SS~J~ SODI~ 0.00 202.61 TC .~BCK 0.00 7873.72 1020 588153 09/21/01 774 WENTERN HIGHWAY PRODUCTS 2708405 FY 2001-2002 OPEN PURC 0.00 1522.75 1020 588154 09/21/01 2412 WESTEI~N PACIFIC DISTRIBU 1108501 SUPPLIES P.0.15376 0.00 92.80 1020 588155 09/21/01 )42002 W~STHRN REGION ROOFING 1100000 R~FUND DUPL PYMT B.LIC 0.00 94.00 1020 588156 09/21/01 M2002 WIT'T'IAJ4S, LIZ 2200000 T~T P, EFU~D 0.00 100.00 1020 588157 09/21/01 H WOO, ~ 580 Refund: Check - CANCE~ 0.00 255.00 1020 588158 09/21/01 M WOODRUFF, AMPAH 580 Refund: Check - S't.~,'~ER 0.00 5.50 1020 588159 09/21/01 M ~U, JANE 580 Refund: Check - S~e4ER 0.00 33.00 1020 586160 09/21/01 M ~U, PING 580 Refufld: Check - SU~4RI~ 0.00 16.50 1020 588161 09/21/01 2093 ALEX ~P/KOFF 1104530 EXPENSES 9/11-9/12 0.00 26.84 1020 588162 09/21/01 M Waller, Billy L. 550 Refund: Check - cancel 0.00 45.00 1020 588163 09/21/01 M Weismann, Gloria 550 Refund: Check - cancel 0.0o 45.00 1020 588164 09/21/01 M Weiss, Lucille 550 Refund: Check - change 0.00 10.00 1020 588165 09/21/01 M Whitman, Klare 550 Re£und: Check - cancel 0.00 ' 45.00 R~I DATE 09/21/01 TII~ 08:02:27 - FINANCIAL 09/21/01 CITY OF CUPERTINO PAGE 16 ACCOUNTING PERIOD: 3/02 CHECK REGISTER - DISBURS~NT FU~D SELECTION CRITERIA: transact.trans_date between "08/17/2001" and "09/21/2001" CASH ACCT CHECK NO ISSUE DT .............. VERDOR ............. FUND/DEPT ..... DESCRIPTION ...... SALES TAX AMOUNT 1020 588166 09/21/01 M Williams, Diana 550 Refund: Check- cancel 0.00 30.00 1020 588167 09/21/01 M Williams, Earl 550 Refund: Check - cancel 0.00 90.00 1020 588168 09/21/01 2000 XPSCT FIRST AID 1108503 SUPPLIES 0.00 73.92 1020 588168 09/21/01 2000 XPECT FIRST AID 1108504 SUPPLIES 0.00 108.81 1020 508168 09/21/01 .2000 XPECT FIRST AID 1108503 SUPPLIES 0.00 217.40 1020 588168 09/21/01 2000 XPECT FIRST AID 1108503 SUPPLIES 0.00 36.01 1020 588168 09/21/01 2000 XPECT FIRST AID 1108503 SUPPLIES 0.00 182.14 1020 508168 09/21/01 2000 XPECT FIRST AID 1108407 SUPPLIES P.O.15379 0.00 181.08 1020 588168 09/21/01 2000 XPECT FIRST AID 11085O3 SUPPLIES 0.00 283.44 1020 508169 09/21/01 M XU, FEI 580 REFUNDS 112275 & 11227 0.00 27.50 1020 588170 09/21/01 M YEE, ANITA 580 REI~qDS 111605 & 11160 0.00 82.00 1020 588171 09/21/01 962 LINDA YELAVICH 5506549 CAKE SEPT. B.DAY SOCIA 0.00 24.99 1020 588172 09/21/01 M YOUM, MYUNG IL 580 Refund: Check- SU~4ER 0.00 11.00 1020 588173 09/21/01 M YUAN, PING 580 Refund: Check - SUMMER 0.00 16.50 1020 588174 09/21/01 805 Z~4WALT ENGINEERING GROU 2709448 SERVICE AGRE~NT FOR 0.00 28% 1020 588174 09/21/01 805 ZUNWALT ENGINEERING GROU 4209529 ADDITION WORK PROJECT 0.00 348.50 1020 588174 09/21/01 805 Z~4WALT ENGINEERING ORON 4209536 SERVICE AOR~NT FOR 0.00 134 · 88 1020 588174 09/21/01 805 Z~4WALT ENGINEERING GROU 2709443 SERVICE A~RE~NT FOR 0.00 1978.63 1020 588174 09/21/01 805 Z~HWALT ENGINEERING GROU 2709438 ADDITIONAL WORK FOR PR 0,00 462.00 1020 588174 09/21/01 805 ZU~ALT ENGINEERING GROU 4209538 SSRVICH AGREEMENT FOR 0.00 134.87 1020 588174 09/21/01 805 Z~4WALT ENGINEERING ONOU 1108601 PROJECT MANAGEMENT DBE 0.00 1010. O0 1020 588174 09/21/01 805 ZU~4W~J~T ENGINEERING GROU 4209537 SERVICE AGRE~NT FOR 0.0O 84.29 1020 588174 09/21/01 805 Z~4WALT ~NGINEERING GROU 4209535 WORK PldtN COST PROPOSA 0.00 3079.34 RESOLUTION NUMBER 01-210 --' A P~$OLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO ALLOWINO CERTAIN CLAIMS AND DEMANDS PAYABLE IN THE AMOUNTS AND FROM THE FUNDS AS HEREINAFTER DESCRIBED FOR SALARIES AND WAOES PAID ON September 28, 2001 WHEREAS, the Director of Administrative Services, or their designated representative has certified to the accuracy oftbe following claims and demands and to the availability of funds for payment hereof; and WHEREAS, the said claims and demands have been audited as required by law; NOW; THEREFORE, BE IT RESOLVED that the City Council hereby allows the following claims and demands in the mounts and from the funds set forth: GROSS PAYROLL $398,375.80 Less Employee Deductions $(122,504.52) NET PAYROLL $275.871.28 '- Payroll check numbers issued 56258 through 56486 Void check number C(F?~~TIFIED: Director of Administrative Services- PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 1st day of October ,2001, by the following vote: Vote Members oftbe CRv Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: '- City Clerk Mayor, City of Cupertino . -. RIESOLUTION NO. 01=211 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO RESCINDING RESOLUTION NO. 00-219 AND ADOPTING THE CONFLICT OF INTEREST CODE OF THE CITY OF CUPERTINO FOR OFFICIALS AND DESIGNATED EMPLOYEES RESOLVED, by the City Council of the City of Cupertino as follows: 1. Amendment and Re~eal That the Code entitled, "Conflict of Interest Code of the City of Cupertino for Officials and Designated Employees" is hereby amended, approved, and adopted as set forth in Exhibit A, along with attached appendices A and B, incorporated herein by reference in which members and employees are designated hereto and by this reference made a part hereof. It is further resolved that Resolution 00-219 is hereby rescinded. 2. Effective Date The effective date of the amendments to this Code shall be thirty (30) days after adoption of this resolution by the City Council. 3. Filing of Resolution The Clerk is hereby directed to file a copy of this resolution with her office and to make it available to members of the general public. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 1st day of October 2001, by the following vote. Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: City Clerk Mayor, City of Cupertino Resolution No. 01=211 Page 2 EXHIBIT A CONFLICT OF INTEREST CODE OF THE CITY OF CUPERTINO FOR OFFICIALS AND DESIGNATED EMPLOYEES The Political Refo,:~ Act, Government Code Section 81000, et seq., requires state and local government agencies to adopt and promulgate conflict of interest codes. The Fair Political Practices Commission has adopted a regulation, 2 Cal. Code of Regs. Section 18730, which contains the reims of a standard conflict of interest code. It can be incorporated by reference and may be amended by the Fair Political Practices Commission aiier public notice and hearings to confo,,,, to amendments to the Political Reform Act. Therefore, the t~m~s of 2 Cal. Code of Regs. Section 18730 and any amendments to it duly adopted by the Fair Political Practices Commission are hereby incorporated by reference and, along with attached Appendix in which members and employees are designated and disclosure categories are set forth, constitutes the conflict of interest eerie of the City of Cupertino. Designated employees shall file statements of economic interests (Fo,ii 700) with the City Clerk who will make the statement available for public inspection and reproduction. (Gev. Code Section 81008). Upon receipt of the statements of the City of Cupertino City Council and City Manager (Fo.,~ 700), the agency shall make and retain a copy and forward the original of these statements to the Fair Political Practices Commission. Statements for all other designated employees will be retained by the City Clerk. It has been determined that the positions listed below manage public investments and will file a statement of economic interests (Form 700) p.ursuant to Government Code Section 87200: City Treasurer Deputy City Treasurer Rcsolution No. 01-211 Page 3 APPENDIX A DESIGNA'I~ED POSITIONS AND APPLICABLE REPORTABLE INTEREST CATEGORIES The following positions shall report all applicable interests in categories A-1 through F: DESIGNATED POSITIONS Commissions Cupertino Telecommunications Commission Redevelopment Agency Employees Assistant City Attorney Director of Community Development Director of Parks and Recreation Director of Public Works - City Engineer Finance Manager- Deputy City Treasurer Human Resources Manager Consultants** ** The City Manager may determine in writing that a particular consultant, although a "designated position", is hired to perform a range of duties that is limited in scope and thus is not required to fully comply with the disclosure requirements in this section. Such written det~,t,lination shall include a description of the consultant's duties and, based upon that description, a statement of the extent of disclosure requirements. The City Manager's determination is a public record and shall be retained for public inspection in the same manner and location as this conflict of interest code. Resolution No. 01-211 Page 4 APPENDIX B DESIGNATED POSITIONS AND APPLICABLE REPORTABLE INTEREST CATEGORIES The following positions shall report all applicable interests in categories A-2 through F: DESIGNATED POSITIONS Commissions Cupertino Housing Committee Fine Arts Commission Parks and Recreation Commission Emoloyees Assistant Civil Engineer Assistant Planner Associate Planner Building Inspector Building Official City Clerk City Planner Code Enforcement Officer Deputy City Clerk Electrical Inspector Engineering Technician Enviromental Programs Manager Facility Pwjects Manager Information Technology Manager Public Information Officer Public Works Inspector Public Works Project Manager Public Works Supervisor Recreation Supervisor Senior Building Inspector Senior Civil Engineer Senior Engineering Technician Senior Planner Senior Traffic Technician Service Center Manager Traffic Engineer RESOLUTION NO. 01-212 -- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO APPROVING THE FINAL MAP AND IMPROVEMENT PLANS OF TRACT NO. 9348, TRA VIGNE VILLAGE AND PLAZA, APN 316-21-029; DEVELOPER, STEVENS CREEK INVESTORS, INC. A CALIFORNIA CORPORATION; ACCEPTING CERTAIN EASEMENTS; AUTHORIZING SIGNING OF FINAL MAP AND IMPROVEMENT PLANS; AUTHORIZING THE EXECUTION OF AGREEMENT IN CONNECTION THEREWITH WHEREAS, there has been presented to the City Council for approval and for authorization to record final map of Tra Vigne Village and Plaza, APN 316-21-029, located on Stevens Creek Boulevard and Blaney Avenue, showing certain avenues, drives, places, and roads by Stevens Creek Investors, Inc. a California Corporation; and WHEREAS, there has been presented to the City Council a proposed agreement for 'the construction of streets, curbs, and gutters and for other improvements, and good and sufficient bonds, fees, and deposits as set forth in Exhibit "A" having been presented for the faithful performance of said work and the carrying out of said agreement; and said map, agreement, and bonds having been approved by the City Attorney; NOW, THEREFORE, BE IT RESOLVED THAT a. Said final map and improvement plans of Tract No. 9348, be and the same are hereby --' approved. b. The offer of dedication for roadway and for eascments is hereby accepted. c. The City Engineer and the City Clerk arc hereby authorized to sign said final map. d. The City Engincer is hereby authorized to sign the improvement plans. e. The Mayor and the City Clerk are hereby authorized to execute the agreement herein referred to. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 1't day of October 2001, by the following vote: Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: _ ATTEST: APPROVED: City Clerk Mayor, City of Cupertino Resolution No. 01-212 Page 2 EXHIBIT "A" SCHEDULE OF BOND, FEES, AND DEPOSITS DEVELOPMENT: Tra Vigne Village and Plaza . Stevens Creek Investors, Inc., a California Corporation LOCATION: Stevens Creek Boulevard and Blaney Avenue, APN 316-21-029 A. Faithful Peffo.mmce Bond: Off-site: $ 46,940.00 On-site: $181,470.00 FORTY-SIX THOUSAND NINE HUNDRED FORTY AND 00/100 DOLLARS ONE HUNDRED EIGHTY-ONE THOUSAND FOUR HUNDRED SEVENTY AND 00/I00 DOLLARS B. Labor and Material Bond: $ 46,940.00 FORTY-SIX THOUSAND NINE HUNDRED FORTY AND 00/100 DOLLARS ONE HUNDRED EIGHTY-ONE THOUSAND FOUR HUNDRED SEVENTY AND 00/100 DOLLARS C. Checldng and Inspection Fees: $ 13,705.00 THIRTEEN THOUSAND SEVEN HUNDRED FIVE AND 00/100 DOLLARS D. Indirect City Expenses: N/A E. Development Maintenance Deposit: $ 2,000.00 TWO THOUSAND AND 00/100 DOLLARS F. Storm Drainage Fee: $ 5,583.00 FIVE THOUSAND FIVE HUNDRED EIGHTY-THREE AND 00/100 DOLLARS G. One Year Power Cost: N/A H. Street Trees: By Developer I. Map Checking Fee: $ 493.00 FOUR HUNDRED NINETY-THREE AND 00/100 DOLLARS J. Park Fee: $ 332,100.00 THREE HUNDRED THIRTY-TWO THOUSAND ONE HUNDRED AND 00/100 DOLLARS K. Water Main Reimbursement: N/A L. Maps and/or Improvement Plans: As specified in Item #23 of agreement ~..[,,~,~ City Hall · ~ 10300 Torte Avenue CIP/OF Cupertino, CA 95014-3255 CUPEILTINO ADMINISTRATIVE SERVICES DEPARTMENT SUMMARY Agenda Item No. '/ Meeting Date: October 1, 2001 SUBJECT AND ISSUE Authorize the issuance of tax-exempt multi-family housing revenue bonds in the principal amount not to exceed $1.6 million and approve a loan of bond proceeds to Cupertino Community Services. BACKGROUND On January 16, 2001, the City Council approved the 24-unit multifamily rental housing project known as the Heart of Cupertino Project (the "Project"). The Project will be located at 10114 and 10214 Vista Drive in the City. The owner of the Project will be Cupertino Community - Services, a California nonprofit public benefit corporation (the "Borrower"). Multifamily housing projects that are owned by nonprofit corporations and that set aside a portion or all of their units for affordable housing qualify for financing through the issuance of tax-exempt bonds. The bond financing program was established by both Federal and State law, and gives property owners/developers access to below-market interest rates for housing projects that include affordable units. In general, under applicable law, at least 10% of the units in the project must bc set aside and made available only to individuals and families who earn no more than 50% of the County median income and 10% of the units must be set aside for individnals and families who earn no more than 80% of the County median income. All twenty-four units in the Project will be set aside for affordable housing. The Borrower requested the City issue the Bonds on their behalf. Total Project costs are estimated to be $7.03 million. The par amount of bonds to be issued will not exceed $1.6 million. The difference between the aggregate par amount of the Bonds and the total Project costs will be paid from an equity contribution by the Borrower, grant monies, loans made to the Project from the City and from other organizations within the County. HONORABLE MAYOR AND CITY COUNCIL The Heart of Cupertino Page 2 A summary follows: Estimated Project Cost $7,075,014 Funding Sources: City of Cupertino Affordable Housing Fund 1,282,811 CDBG/Rehab 622,396 Affordable Housing (up to $800K) 618,568 Tax exempt bonds (not to exceed $1.6M) 1,206,058 Cupertino Commtmity Services Equity 1,600,000 Santa Clara Co. HOME 747,800 Santa Clara Co. CDBG 300,000 City of Los Altos 176,674 City of Sunnyvale 100,000 City of Santa Clara 40,000 City of Saratoga 39,707 Housing Trust Santa Clara County 341,000 $7,075,014 Bond proceeds will be used to fwance a portion of the costs of the acquisition and construction of the 24-unit project and to pay costs related to the issuance of the Bonds. In order to complete the financing, the City Council must hold a public hearing on the Project required under the Tax Equity Fiscal Responsibility Act (TEFRA) and adopt a resolution authorizing the approval of certain bond documents and the issnance of the Bonds. TEFRA HEARING The TEFRA hearing is required by the Tax Equity and Fiscal Responsibility Act of 1982 for the issuance of all industrial development bonds. The public hearing must be held by the sponsoring government agency (the City) prior to issuing private activity bonds such as the proposed Bonds for this Project. The purpose of the hearing is to allow the public to comment on the City's intentions to issue tax-exempt bonds for the purpose of financing a multifamily housing project. The City noticed the public of its intention to issue tax-exempt bonds for this Project by publishing the notice for the TEFRA Hearing on August 29, 2001 in the Cupertino Courier. ANALYSIS This portion of the report is divided into several sections to address the items in staff's recommendation to proceed with the Project financing. These sections include: description of the Bond financing structure, Bond financing documents, discussion of financing team participants, and review of financing schedule. HONORABLE MAYOR AND CITY COUNCIL The Heart of Cupertino Pnge 3 Bond Financing Structure Overview of Multifamily Bond Financing As a brief summary, multifamily housing revenue bonds are issued to finance the development by private and/or nonprofit developers of certain rental aparlment projects. The City issues the bonds and then loans the proceeds to the developer/borrower. The bonds are typically issued as tax-exempt securities. For the bonds to qualify for tax-exemption, generally, any one of three restrictions must apply: either (1) the Project must be owned and operated by a nonprofit corporation, (2) at least 20 percent of the units in the.housing development must be reserved for occupancy by individuals and families of very-low income (50% of area median income) or (3) at least 40 percent of the units must be reserved for occupancy by individuals and families of low income (60% of area median income). In this case, the Project will be owned and operated by the Borrower, a nonprofit corporation and all of the units in the Project will be reserved for affordable housing. The advantages of tax-exempt bonds to developer/borrower include below-market interest rates and long-term fixed rate financing- features not available in the conventional multifamily construction loan mortgage market. The Bonds are limited obligations of the City, payable solely from payments received from the repayment of the loan to the Borrower. The repayment of the multifamily housing bonds are typically guaranteed through some form of credit enhancement, either by a bank letter of credit, bond insurance policy, or federal guarantee program (i.e., FNMA, GNMA, etc.). With credit enhancement the bonds are able to be rated investment grade ("A") or higher ("A_AA") and, therefore, receive the lowest interest rate available in the market. In today's market the interest rates would be approximately 5.5%. However, the cost of credit enhancement can be as much as 1.0% per year plus upfront costs. Therefore, due to the size of the Bonds to be issued ($1.6 million) for this Project, it is not cost effective for the Borrower to purchase credit enhancement for the Bonds. Instead, the Bonds will be sold on a private plac~uient basis to Cupertino National Bank at an interest rate of 6.375%. There are no additional ongoing costs for the Bonds to be added to the interest rate. Therefore, a non-rated; non-credit enhancement privately placed bond results in a more cost effective interest rate for the Project which equates to a more affordable housing project for the community. Structure of the Bonds for the Project For this Project, the financing structure consists of Bonds to be issued in an amount not to exceed $1.6 million. The Bonds will be issued for a term of approximately 30 years with a final maturity date of October 1,2031. The Bond proceeds will be loaned to the Borrower to finance the construction of the Project. Once the Project is stabilized. The Bonds will have a 30-year level amortization schedule. Bond Financirtg Documents There are a number of Bond financing documents that require City Council approval in order to proceed with the issuance of the Bonds. All of the documents described below will be available for review in the City Clerk's office on or about Tuesday, September 25, 2001. HONORABLE MAYOR AND CITY COUNCIL The Henrt of Cupertino Page 4 Indenture of Trust. The Indenture of Trust (the "Indenture") is between the City and Cupertino National Bank, as the Bondowner Representative. This document is to be executed by the City Manager, or other authorized officer on behalf of the City. Pursuant to the Indenture, Bondowner Representative is given the authority to receive, hold, invest and disburse the Bond proceeds and other funds established under the Indenture; to authenticate the Bonds; to apply and disburse payments to Bondowners; and to pursue remedies on behalf of the Bondowners. The Indenture sets forth the guidelines for the administration, investment and treatment of investment earnings generated by each fund and account. The Indenture provides for the Borrower to compensate the Bondowner Representative for services rendered under the Indenture. Loan Agreement. This Agreement (the "Loan Agreement") is between the City and the Borrower. This document is executed by the City Manager or other authorized officer on behalf of thc City. The Loan Agreement provides for the use of thc Bond proceeds to fund the loan for the construction of the Project and for the repayment of such loan and other fees and amounts by the Borrower. The interest of the City in receiving payments under the Loan Agreement and enforcing the receipt of such payments under the Loan Agreement have been assigned to the Bondowner Representative under the Indenture; however, certain reserved rights have been retained by the City, such as the City's right to indemnification and fees. Regulatory Agreement and Declaration of Restrictive Covenants. This agreement (the "Regulatory Agreement") is between the City and the Borrower. This document is executed by the City Manager on behalf of the City. The Regulatory Agreement contains certain covenants and restrictions regarding the Project and its operations intended to assure compliance with the Internal Revenue Code of 1986 and applicable State law. This Agreement restricts the rental of Project units to the appropriate percentage of low or very-low income individuals or families for a period of years required to comply with applicable State law. In the case of the Project, thc units will be restricted for a period of 30 years. Financing Team Participants The financing team participants consist of: · City's Financial Advisor: E. Wagner & Associates, Inc. · Bond Purchaser: Cupertino National Bank Bond Counsel: Quint & Thimmig LLP All costs associated with the financial advisor, bond purchaser (including its counsel), and bond counsel are contingent on the sale of the Bonds and will be paid from Bond proceeds, City loan proceeds and/or Borrower equity, grant monies, etc. HONORABLE MAYOR AND CITY COUNCIL The Heart of Cupertino Page 5 Financing Schedule The current proposed schedule is as follows: Council approval of bond documents October 1, 2001 Pre-Close and Close Bonds October , 2001 PUBLIC OUTREACH The method of notifying the community of the City's' intent to issue tax-exempt bonds is for the City Council to hold a public (TEFRA) Hearing. The public hearing notice was published in the Cupertino Courier on August 29, 2001. COORDINATION This report has been prepared by the Adwinistrative Services Department in coordination with City Attorney's Office, the Department of Planning and Community Services and the financing team participants. COST IMPLICATIONS All costs will be paid from Bond proceeds, the City loan, Borrower equity and/or grant monies. The Bonds are tax-exempt obligations. No payment of the Bonds will be paid from or guaranteed th_rough the general taxing power of the City or any other City asset. RECOMMENDATION Following the holding of a public hearing on the matter, adoption of a resolution authorizing the issuance of tax-exempt multifamily housing revenue bonds (the "Bonds"), in the principal amount of not to exceed $1.6 million, approving a loan of bond proceeds to Cupertino Community Services, a California nonprofit public benefit Corporation (the "Borrower") for financing the construction of the Heart of Cupertino housing project and further including the following action: 1. Approving in substantially final form the Indenture of Trust, Loan Agreement and Regulatory Agreement and Declaration of Restrictive Covenants. 2. Authorizing the designation of E. Wagner & Associates, Inc., as financial advisor and Quint & Thimmig, LLP, as bond counsel to the City with respect tot the issuance of the Bonds. The fees and expenses of such firms are payable solely from the proceeds of the Bonds or contributions by the Borrower from its Own funds or from other sources of funding available to the Borrower. HONORABLE MAYOR AND CITY COUNCIL The Heart of Cuperlino Pa~¢ 0 3. Authorizing the City Manager to execute and, as appropriate, to negotiate, execute and deliver these documents and other related documents as necessary. Submitted by: Approved' for submission: Director of Administrative Services City Manager RESOLUTION NO. 01-213 A RESOLUTION OF THE CITY OF CUPERTINO AUTHORIZING THE ISSUANCE OF MULTIFAMILY HOUSING REVENUE BONDS TO FINANCE A MULTIFAMILY RENTAL HOUSING PROJECT FOR CUPERTINO COMMUNITY SERVICES, AND APPROVING RELATED DOCUMENTS AND ACTIONS RESOLVED, by the City Council of the City of Cupertino, California, as follows: 14FI-tEREAS, the City of Cupertino (the "City") is authorized by Chapter 8.(commencing with Section 52100) of Part 5 of Division 31 of the Health and Safety Code of the State of California, as amended (the "Act") to issue revenue bonds and make loans to nonprofit organizations of the proceeds of the bonds for the purpose of providing financing for the development of multifamily rental housing facilities located within the City; WHEREAS, the City Council hereby finds and declares that it is necessary, essential and a public purpose for the City to engage in a program (the "Program") of financing the costs of the acquisition and construction of multifamily rental housing, and has determined to issue its City of Cupertino Multifamily Housing Revenue Bonds (Heart of Cupertino Project), Series 200lA (the "Bonds"), as authorized by the Act, in an amount not to exceed $1,600,000 for such purpose pursuant to an Indenture of Trust (the "Indenture"), between the City and Cupertino National Bank, as Bondowner Representative (the "Bondowner Representative"), and by loaning (the "Loan") the proceeds of the Bonds to Cupertino Community Services, a California nonprofit public benefit corporation (the "Borrower") pursuant to a loan agreement (the "Loan Agreement") between the City and the Borrower for the purpose of financing the acquisition and construction by the Borrower of 24 units of multifamily housing to be located at the 10114 and 10214 Vista Drive in the City (the "Project"); and WHEREAS, the City Council has held a duly noticed public hearing regarding the financing, where all persons were given an opportunity to be heard regarding the financing of the Project with the proceeds of the Bonds and the location, ownership and operation of the Project; and WHEREAS, all conditions, things and acts required to exist, to have happened and to have been performed precedent to and in connection with the issuance of the Bonds, making of the Loan and the implementation of the Program as contemplated by this Resolution and the doc-ments referred to herein exist, have happened and have been performed in due time, form and manner as required by the laws of the State of California, including the Act. NOW, THEREFORE, it is hereby DETERMINED and ORDERED as follows: Section 1. The City Council hereby finds and declares that the above recitals are true and correct. Resolution No. 01-213 Section 2. The Indenture, in the fo~ presented to this meeting, is hereby approved. The City Manager is hereby authorized and directed to execute and deliver the Indenture for the City in shid form, together with such additions thereto or changes thereIn as are recommended or approved by the City Manager upon consultation with the City Attorney and Bond Counsel to the City, including such additions or changes as are necessary or advisable in accordance with Section 7 hereof, the approval of such changes to be conclusively evidenced by the execution and delivery of the Indenture by the City. The date, maturity date, interest rate or rates, interest payment dates, denominations, form, registration privileges, manner of execution, place of payment, te~ms of redemption and other terms of the Bonds shall be as provided in the Indenture as finally executed. The City Council hereby authorizes the issuance of the City of Cuperffno Multifamily Housing Revenue Bonds (Heart of Cupertino Project), Series 200lA, In a principal amount of up to $1,600,000, under and pursuant to the Indenture. The Mayor is hereby authorized and directed to execute the Bonds, and the City Clerk is hereby authorized and directed to attest the Bonds, in the fo~'m set forth in Exhibit A to the Indenture. Section 3. The Loan Agreement, in the form presented to this meeting, is hereby approved. The City Manager is hereby authorized and directed to execute and deliver the Loan Agreement for the City in said fom~, together with such additions thereto or changes therein as are recommended or approved by the City Manager upon consultation with the City Attorney and Bond Counsel to the City, Including such additions or changes as are necessary or advisable in accordance with Section 7 hereof, the approval of such changes to be conclusively evidenced by the execution and delivery of the Loan Agreement by the City. Section 4. The regulatory agreement and declaration of restrictive covenants (the "Regulatory Agreement") between the City and the Borrower, in the form presented to this meeting, is hereby approved. The City Manager is hereby authorized and directed to execute and deliver the Regulatory Agreement in said form, together with such additions thereto or changes therein as are recommended or approved by the City Manager upon consultation with the City Attorney and Bond Counsel to the. City, including such additions or changes as are necessary or advisable in accordance with Section 7 hereof, the approval of such additions or changes to be conclusively evidenced by the execution and delivery of the Regulatory Agreement by the City. Section 5. The Bonds, when executed, shall be delivered to the Bondowner Representative for authentication. The Bondowner Representative is hereby requested and directed to authenticate the Bonds by executing the certificate of authentication and registration appearing thereon, and to deliver the Bonds, when duly executed and authenticated, to the purchaser of the Bonds in accordance with written instructions executed on behalf of the City by the City Manager, which instructions said officer is hereby authorized and directed, for and in the name and on behalf of the City, to execute and deliver to the Bondowner Representative. Such instructions shall pr. ovide for the delivery of the Bonds to the purchaser of the Bonds, upon payment of an amount equal to the initial advance of Bond proceeds of $50,001. -2- Resolution No. 01-213 Section 6. The f'h.~i of E. Wagner & Associates, Inc. is hereby designated as financial advisor to the City with respect to the Bonds, and the law firm of Quint & Thirnmig LLP is hereby designated as bond counsel to the ~tty ~with r~i~ect to the Bonds. The fees and expenses of such fhms shall be payable solely from the proceeds of the Bonds or contributions by the Borrower from its own funds or from other sources of funding available to Borrower. Section Z All actions heretofore taken by the officers and agents of the City with respect to the establishment of the Program, the Bonds and the Loan are hereby approved, confirmed and ratified, and the proper officers of the City are hereby authorized and directed, for and in the name and on behalf of the City, to do any and all things and take any and all actions and execute any and all certificates, agreements and other documents, which they, or any of them, may deem necessary or advisable in order to consummate the lawful issuance of the Bonds and the making of the Loan in accordance with this Resolution and resolutions heretofore adopted by the City and in order to carry out the Program, including but not limited to any certificates, agreements and documents described in the Indenture, the Loan Agreement or the Regulatory Agreement. Section 8. This Resolution shall take effect immediately upon its adoption. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 1st day of October, 2001, by the following vote: Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: City Clerk Mayor, City of Cupertino &~7J01 Quint & Thimmig LLP 9/1(~1 INDENTURE OF TRUST by and between the CITY OF CUPERTINO and CUPERTINO NATIONAL BANK, as Bondowner Representative Dated as of October 1, 2001 Relating to: City of Cupertino Multifamily Housing Revenue Bonds (Heart of Cupertino Project), Series 2001A 0302.8.01:~.~48 TABLE OF CONTENTS ARTICLE I DEFINITIONS AND GENERAL PROVISIONS Section 1.01. Definitions .......................................................................................................................................................... 2 Section 1.02. Rules of Construction ........................................................................................................................................ 6 ARTICLE II THE BONDS Section 2.01. Authorization ............................................................. :~ ...................................................................................... 7 Section 2.02. Terms of Bonds ................................................................................................................................................. 7 Section 2.03. Payment of Bonds ............................................................................................................................................. 7 Section 2.04. Execution of Bonds ........................................................................................................................................... 7 Section 2.05. Transfer of Bonds .............................................................................................................................................. 8 Section 2.06. Bond Register .................................................................................................................................................... 8 ARTICLE III ISSUANCE OF BONDS; APPLICATION OF PROCEEDS Section 3.01. Authentication and Delivery of the BOnds ......................................................................................................... 9 Section 3.02. Application of Proceeds of BOnds ..................................................................................................................... 9 Section 3.03. Program Fund ................................................................................................................................................... 9 ARTICLE IV REDEMPTION OF BONDS Section 4.01. Circumstances of Redemption ........................................................................................................................ 11 Section 4.02. No Notice of Redemption ................................................................................................................................ 11 Section 4.03. Effect of Redemption ....................................................................................................................................... 11 ARTICLE V REVENUES Section 5.01. Pledge of Revenues ........................................................................................................................................ 12 Section 5.02. Bond Fund ....................................................................................................................................................... 12 Section 5.03. Investment of Moneys ..................................................................................................................................... 12 Section 5.04. Assignment to BOndowner Representative; Enforcement of Obligations ........................................................ 13 ARTICLE VI COVENANTS OF THE ISSUER Section 6.01. Payment of Principal and Interest ................................................................................................................... 14 Section 6.02. Paying Agents ................................................................................................................................................. 14 Section 6.03. Preservation of Revenues; Amendment of Documents .................................................................................. 14 Section 6.04. Compliance with Indenture .............................................................................................................................. 14 Section 6.05. Fudher Assurances ......................................................................................................................................... 15 Section 6.06. No Arbitrage .................................................................................................................................................... 15 Section 6.07. Limitation of Expenditure of Proceeds ............................................................................................................. 15 Section 6.08. Rebate of Excess Investment Eamings to United States ................................................................................ 15 Section 6.09. Limitation on Issuance Costs .......................................................................................................................... 15 Section 6.10. Federal Guarantee Prohibition ........................................................................................................................ 15 Section 6.11. Prohibited Facilities ......................................................................................................................................... 15 Section 6.12. Use Covenant .................................................................................................................................................. 15 Section 6.13. Immunities and Limitations of Responsibility of Issuer .................................................................................... 16 Section 6.14. Small Issuer Exemption from Bank Nondeductibility Restriction ..................................................................... 16 ARTICLE VII DEFAULT Section 7.01. Events of Default; Acceleration; Waiver of Default .......................................................................................... 17 Section 7.02. Institution of Legal Proceedings by Bondowner Representative ..................................................................... 18 Section 7.03. Application of Moneys Collected by Bondowner Representative .................................................................... 18 Section 7.04. Effect of Delay or Omission to Pursue Remedy .............................................................................................. 18 SectJon 7.05. Remedies Cumulative ................................................ ~ .................................................................................... 19 Section 7.06. Covenant to Pay Bonds in Event of Default .................................................................................................... 19 Section 7.07. Bondowner Representative Appointed Agent for Bondholders ....................................................................... 19 Section 7.08. Power of Bondowner Representative to Control Proceedings ........................................................................ 19 Section 7.09. Limitation on Bondholders' Right to Sue ......................................................................................................... 19 Section 7,10. Limitation of Liability to Revenues ................................................................................................................... 20 'ARTICLE VIII THE BONDOWNER REPRESENTATIVE AND AGENTS Section 8.01. Duties, Immunities and Liabilities of Bondowner Representative .................................................................... 21 Section 8.02. Right of Bondowner Representative to Rely Upon Documents, Etc ................................................................ 23 Section 8.03. Bondowner Representative Not Responsible for Recitals ............................................................................... 23 Section 8.04, Intervention by Bondowner Representative .................................................................................................... 23 Section 8.05. Moneys Received by Bondowner Representative to be Held in Trust. ........................................................... 24 Section 8.06. Compensation and Indemnification of Bondowner Representative and Agents ............................................. 24 Section 8.07. Qualifications of Bondowner Representative .................................................................................................. 24 Section 8.08. Merger or Consolidation of Bondowner Representative .................................................................................. 24 Section 8.09. Dealing in Bonds ............................................................................................................................................. 25 ARTICLE IX MODIFICATION OF INDENTURE Section 9.01. Modification of Indenture ................................................................................................................................. 26 Section 9.02. Effect of Supplemental Indenture .................................................................................................................... 28 Section 9.03. Opinion of Counsel es to Supplemental indenture .......................................................................................... 26 Section 9.04. Notation of Modification on Bonds; Preparation of New Bonds ....................................................................... 28 ARTICLE X DEFEASANCE Section 10.01, Discharge of Indenture .................................................................................................................................... 28 Section 10.02. Discharge of Liability on Bonds ....................................................................................................................... 28 Section 10.03. Payment of Bonds after Discharge of Indenture ............................................................................................. 29 Section 10.04. Deposit of Money or Secu~ties with Boodowner Representative .................................................................... 29 ARTICLE Xl MISCELLANEOUS Section 11.01. Successors of Issuer ....................................................................................................................................... 30 Section 11.02. Umitation of Rights to Parties and Bondholders ............................................................................................. 30 Section 11.03. Waiver of Notice .............................................................................................................................................. 30 Section 11.04. Destruction of Bonds ....................................................................................................................................... 30 ~on 11 .DSm Separability of invalid Provisions ..................................................................................................................... 30 Section 11.06. Notices ............................................................................................................................................................ 30 Section 11.07. Authorized Representatives ....................... : ......... ...:...,: .................................................................................... 31 Section 11.08. Evidence of Rights of Bondholders ................................................................................................................. 31 Section 11.09. Waiver of Personal Liability ............................................................................................................................. 32 Section 11.10. Holidays ........................................................................................................................................................... 32 Section 11.11. Execution in Several Counterparts .................................................................................................................. 32 Section 11.12. Goveming Law ................................................................................................................................................ 32 Section 11.13. Conflict with Trust Indenture Act of 1939 ........................................................................................................ 32 Section 11.14. Successors ...................................................................................................................................................... 32 Section 11.15. CUSIP Numbers .............................................................................................................................................. 32 EXHIBIT A FORM OF BOND INDENTURE OFTRUST This Indenture of Trust, dated as of October 1, 2001 (this 'Indenture"), is by and between the City of Cupertino, a municipal corporation duly organized and existing under the laws of the State of Califomia (herein called the "Issuer"), and Cupertino National Bank, a national banking association organized under the laws of the United States of Amedca, and being qualified to accept and administer the trusts hereby created, as Bondowner Representative (herein called the 'Bondowner Representative"). WITNESSETH: WHEREAS, the Issuer has determined to engage in a program of financing the acquisition and construction of multifamily rental housing by a nonprofit organization exempt from federal income taxation under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the 'Code") pursuant to Chapter 8 of Part 5 of Division 31 of the Health and Safety Code of the State of Califomia (the "Act"), and has determined to borrow money for such purpose by the issuance of revenue bonds as authorized by the Act; and WHEREAS, all conditions, things and acts required by the Act, and by all other laws of the State of California, to exist, have happened and have been performed precedent to and in connection with the issuance of the City of Cupertino Uultifamily Housing Revenue Bonds (Heart of Cupertino Project), Series 2001A (the 'Bonds") exist, have happened, and have been performed in due time, form and manner as required by law, and the Issuer is now duly authorized and empowered, pursuant to each and every requirement of law, to issue the Bonds for the purpose, in the manner and upon the terms herein provided; and WHEREAS, the Issuer has duly entered into a loan agreement (the "Agreement" or the 'Loan Agreement") with Cupertino Community Services (the 'Borrower"), specifying the terms and conditions of the lending of the proceeds of the Bonds (the 'Loan") to the Borrower for the financing of 24 units of murdfamily rental housing located in the City of Cupertino, and the repayment by the Bonower of the Loan; and WHEREAS, in order to provide for the authentication and delivery of the Bonds, to establish and declare the terms and conditions upon which the Bonds are to be issued and secured and to secure the payment of the principal thereof and of the interest and premium, if any, thereon, the Issuer has authorized the execution and delivery of this Indenture; and WHEREAS, all acts and proceedings required by law necessary to make the Bonds, when executed by the issuer, authenticated and delivered by the Bondowner Representative and duly issued, the valid, binding and legal limited obligations of the Issuer, and to constitute this Indenture a valid and binding agreement for the uses and purposes herein set forth, in accordance with its terms, have been done and taken; and the execution and delivery of this Indenture have been in all respects duly authorized. NOW, THEREFORE, THIS INDENTURE WlTNESSETH, that in order to secure the payment of the principal of, and the interest and premium, if any, on, all Bonds at any time issued and outstanding under this Indenture, according to their tenor, and to secure the performance and observance of all the covenants and conditions therein and herein set forth, and to declare the terms and conditions upon and subject to which the Bonds are to be issued and received, and for and in consideration of the premises and of the mutual covenants herein contained and of the purchase and acceptance of the Bonds by the owners thereof, and for other valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Issuer covenants and agrees with the Bondowner Representative, for the equal and proportionate benefit of the respective registered owners from time to time of the Bonds, as follows: -1' ' ARTICLE I DEFINITIONS AND GENERAi" 'PROVISIONS Section 1.01. Definitions. Unless the context otherwise requires, the terms defined in this Section 1.01 shall, for all purposes of this Indenture and of the Loan Agreement and of any indenture supplemental hereto or agreement supplemental thereto, have the meanings herein specified, as follows: The term "Act" shall mean Chapter 8 of Part 5 of Division 31 of the Health and Safety Code of the State of California, as in effect on the Closing Date. The term "Administrator" shall mean the Issuer, or an~'substitute administrator appointed by the Issuer as agent of the Issuer in the administration of the Regulatory Agreement. The term "Agreement" or "Loan Agreement" shall mean the Loan Agreement, dated as of October 1, 2001, between the Issuer and the Borrower, pursuant to which the Issuer agrees to loan the proceeds of the Bonds to the Borrower, as originally executed or as it may from time to time be supplemented or amended in accordance with its terms. The term "Authorized Amount" shall mean One Million Six Hundred Thousand Dollars ($1,600,000), the authorized maximum principal amount of the Bonds. The term "Authorized Borrower Representative" shall mean any person who at the time and from time to ._ time may be designated as such, by written certificate fumished to the Issuer and the Bondowner Representative containing the specimen signature of such person and signed on behalf of the Borrower by the President of the General Partner of the Borrower, which certificate may designate an altemate or alternates. The term "Authorized Issuer Representative" shall mean the City Manager or the Director of Administrative Services of the Issuer, or any other person designated to act in such capacity by a Certilicate of the Issuer containing the specimen signature of any of such persons which certificate may designate an alternate or alternates. The term "Bond Counsel" shall mean (i) Quint & Thimmig LLP, or (ii) any attorney at law or other firm of attorneys selected by the Issuer of nationally recognized standing in matters pertaining to the federal tax status of interest on bonds issued by states and political subdivisions, and duly admitted to practice law before the highest court of any state of the United States of America, but shall not include counsel for the Borrower. The term "Bond Fund" shall mean the fund established pursuant to Section 5.02 hereof. The term "Bondowner Representative" shall mean (a) initially, Cupertino National Bank, a national banking association organized under the laws of the United States of America, or (b) any successor thereto as provided in Section 8.07 or 8.08 hereof. The term "Bonds" shall mean the City of Cupertino Multifamily Housing Revenue Bonds (Heart of Cupertino Project), Series 2001A, issued and ouisianding hereunder. The term "Bond Year" means the one-year period beginning on October _ in each year and ending - October_ in the following year, except that the fi~ Bond Year shall begin on the Closing Date and end on October _, 2002. The term "Borrower" shall mean Cupertino Community Services, and its successors and assigns under the provisions of Section 6.2 of the Loan Agreement. The term "Business Day" shall mean any day other than a Saturday, Sunday, legal holiday, day on which banking institutions in the city in which the Bondowner Representative's Principal Office is located are authorized or obligated by law or executive order to close. The term "Certificate of the Issuer" shall mean a certificate of the Issuer signed by an Authorized Issuer Representative. The term "Certified Resolution" shall mean a copy of a resolution of the Issuer certified by the City Clerk of the Issuer, to have been duly adopted by the Issuer and tO be in full fome and effect on the date of such certification. The term "Closing Date" shall mean O~tober_, 2001, the data of initial delivery of the Bonds and funding of the first $ [at least 50,001] principal amount of the Bonds and the Loan. The term "Code" means the Internal Revenue Code of 1986 as in effect on the date of issuance of the Bonds or (except as othenvise referenced herein) as it may be amended to apply to obligations issued on the date of issuance of the Bonds, together with applicable proposed, temporary and final regulations promulgated, and applicable official public guidance published, under the Code. The term "Debt Service" means the scheduled amount of intarest and amortization of principal payable on the Bonds during the period of computation, excluding amounts scheduled during such period which relate to principal which has been retired before the beginning of such period. The term "Decal of Trust" shall mean the Deed of Trust, Assignment of Rents and Leases, Security Agreement and Fixture Filing, executed by the Borrower in favor of the Issuer (and assigned by the Issuer to the Bondowner Representative), for the purpose of securing the obligations of the Borrower under the Loan Agreement, as such deed of trust may be originally executed or as from time to time supplemented and amended. The term "Default Rate" means the interest rate then in effect on the Bonds plus live percent (5.0%). The term "Development" means the 24 units of murdfamily rental housing to be constructed by the Borrower with a portion of the proceeds of the Bonds located in the City of Cupertino, including structures, buildings, fixtures or equipment, as it may at any time exist, and any structures, buildings, fixtures or equipment acquired in substitution for, as a renewal or replacement of, or a modification or improvement to, all or any part of such facilities, and a fee interest in the land on which such housing is situated. The term "Development Costs" has the meaning given such term in the Loan Agreement. The term "Event of Default" as used herein other than with respect to defaults under the Loan Agreement shall have the meaning specified in Section 7.01 hereof, and as used in the Loan Agreement shall have the meaning specified in Section 7.01 thereof. The term "Fair Market Value" means the price at which a willing buyer would pumhase the investment from a willing seller in a bona fide, arm's length transection (determined as of the date the contract to purchase or sell the investment becomes binding) if the investment is traded on an established securities market (within the meaning of section 1273 of the Code) and, otherwise, the term 'Fair Market Value" means the acquisition price in a bona fide arm's length transaction (as referenced above) if (i) the investment is a certJficata of deposit that is acquired in -3- accordance with applicable regulations under the Code, (ii) the investment is an agreement with specifically negotiated withdrawal or reinvestment provisions and a specifically negotiated interest rate (for example, a guaranteed investment contract, a forward supply contract or other investment agreement) that is acquired in accordance with applicable regulations under the Code, (iii) the investment is a United States Treasury Obligation- State Local Govemment Series that is acquired in accordance with applicable regulations of the United States Bureau of Public Debt, or (iv) the investment is the Local Agency InvesbT~ent Fund of the State of California but only if at all times during which the investment is held its yield is reasonably expected to be equal to or greater than the yield on a reasonably comparable direct obligation of the United States. The term "Holder," "holder" or "Bondholder" or "owner" or "Bondowner" shall mean the person in whose name any Bond is registered. The term "Indenture" shall mean this Indenture of Trust, as originally executed or as it may from time to time be supplemented, modified or amended by any supplemental indenture entered into pursuant to the provisions hereof. The term "Interest Payment Date" shall mean the first Business Day of each month, commencing November 1, 2001. The term "investment Securities" shall mean any of the following (including any funds comprised of the following, which may be funds maintained or managed by the Bondowner Representative and its affiliates), but only to the extent that the same are acquired at Fair Market Value: (a) United States Treasury notes, bonds, bills, or those for which the full faith and credit of the United States, its agencies, its instrumentalities, or organizations created by an act of Congress, are pledged for the payment of principal and interest (including State and Local Govemment Series); (b) shares of an investment company (1) registered under the Federal Investment Company Act of 1940, whose shares are registered under the Federal Securities Act of 1933, (2) whose only investments are in (i) securities described in the preceding clause (a), (ii) general obligation tax-exempt securities rated A or better by the Rating Agency, or (iii) repurchase agreements or reverse repumhase agreements folly collateralized by those securities if the repurchase agreements or reverse repurchase agreements are entered into only with those primary reporting dealers to report to the Federal Reserve Bank of New York and with the 100 largest United States commemial banks, and (3) which are rated Am or Am-g or better by the Rating Agency; (c) any security which is a general obligation of any state or any local govemment with taxing powers which is rated A or better by the Rating Agency; or (d) commemial paper issued by United States corporations or their Canadian subsidiaries that is rated A-1 by the Rating Agency and matures in 270 days or less. The term "Issuance Coats" means all costs and expenses of issuance of the Bonds, including, but not limited to: (i) underwriters' discount and fees; (ii) counsel fees, including bond counsel and Borrower's counsel, as well as any other specialized counsel fees incun'ed in connection with the issuance of the Bonds or the Loan; (iii) the Issuer's fees and expenses incurred in connection with the issuance of the Bonds, including fees of any advisor to the Issuer, and the Issuer administrative fee for processing the request of the Borrower to issue the Bonds; (iv) ._. Bondowner RapresentaUve's fees and Bondowner Representative's counsel fees; (v) paying agent's and cerUfying and authenticating agent's fees related to issuance of the Bonds; (vi) accountant's fees related to issuance of the Bonds; (vii) publication costs associated with the financing proceedings; and (viii) costs of engineering and feasibility studies necessary to the issuance of the Bonds. The.term "Issuer" shall mean the City of Cupertino, the issuer of the Bonds hereunder, and its successors and assigns as provided in Section 11.01. The term "Loan" shall mean the loan made by the Issuer to the Borrower pursuant to the Agreement for the purpose of financing the acquisition and construction by the Borrower of the Development. The term "Loan Agreement" shall mean the Agreement, as defined herein. The term "Note" means the promissory note evidencing the Loan, in the form attached as Exhibit C to the Loan Agreement. The term "Opinion of Counsel" shall mean a written opinion of counsel, who may be counsel for the Issuer, Bond Counsel or counsel for the Bondowner Representative. The term "outstanding", when used as of any particular time with reference to Bonds, shall, subject to the provisions of Section 11.08(e), mean all Bonds therefofore authenticated and delivered by the Bondowner Representative under this indenture except: (a) Bonds theretofore canceled by the Bondowner Representative or surrendered to the Bondowner Representative for cancellation; (b) Bonds for the payment or redemption of which moneys or securities in the necessary amount (as provided in Section 10.04) shall have themtofore been deposited with the Bondowner Representative (whether upon or prior to the maturity or the redemption date of such Bonds); and (c) Bonds in lieu of or in substitution for which other Bonds shall have been authenticated and delivered by the Bondowner Representative pursuant to the terms of Section 2.05. The term "person" shall mean an individual, a corporation, a partnership, a trust, an unincorporated organization or a govemment or any agency or political subdivision thereof. The term "Principal Office" shall mean the principal office of the Bondowner Representative located at the address set forth in Section 11.06 hereof, or at such other place as the Bondowner Representative shall designate by notice given under said Section 11.06. The term "Principal Payment Date" shall mean any date on which principal of the Loan is due and payable under the Loan Agreement. The term "Program Fund" shall mean the fund established pursuant to Section 3.03 hereof. The term "Qualified Development Costs" has the meaning given such term in the Loan Agreement. The term "Rating Agency" shall mean Standard & Poor's Ratings Group, a division of McGrew-Hill, or its successors and assigns or, if such entity shall be dissolved or liquidated or shall no longer perform the functions of a securities rating agency, any other naionally recognized rating agency designated by the Issuer. · --. The term "Regulations" means the Income Tax Regulations promulgated or proposed by the Department of the Treasury pursuant to the Code from time to rime or pursuant to any predecessor statute to the Code. The term "Regulatory Agreement" shall mean the Regulatory Agreement and Declarations of Restdcrive Covenants of even date herewith, by and between the Issuer and the Borrower. The term "Responsible Officer" of the Bondowner Representative shall mean any officer of the Bondowner Representative assigned to administer its duties hereunder. The term "Revenues" shall mean ali amounts pledged hereunder to the payment of principal of, premium, if any, and interest on the Bonds, consisting of any repayments of the Loan required or permitted to be made by the Borrower pursuant to Section 5.1(a) of the Loan Agreement, but Such term shall not include payments to the United States, the Issuer, the Administrator or the Bondowner Representative pursuant to Sections 2.3, 2.4, 5.1(b), 5.1(d) or 7.4 of the Agreement or Sections 6.08 or 8.06 hereof or Sections 7 or 23 of the Regulatory Agreement. The term "supplemental indenture" or "indenture supplemental hereto" shall mean any indenture hereafter duly authorized and entered into between the Issuer and the Bondowner Representarive in accordance with the provisions of this Indenture. The terms "Written Consent", "Written Demand", "Written Direction", "Written Election", "Written Notice", "Written Order", "Written Request" and "Written Requisition" of the Issuer or the Borrower shall mean, respectively, a written consent, demand, direction, election, notice, order, request or requisition signed on behalf of the Issuer by an Authorized Issuer Representative, or on behalf of the Borrower by an Authorized Borrower Representative. Section 1.02. Rules of Construction. (a) The singular form of any word used herein, including the terms defined in Section 1.01, shall include the plural, and vice versa, unless the context otherwise requires. The use herein of a pronoun of any gender shall include correlative words of the other genders. (b) All references herein to 'Articles", 'Sections" and other subdivisions hereof are to the corresponding Articles, Sections or subdivisions of this Indenture as originally executed; and the words 'herein', Uhereof', "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or subdivision hereof. (c) The headings or riries of the several Articles and Sections hereof, and any table of contents appended to copies hereof, shall be solely for convenience of reference and shall not affect the meaning, construction or effect of this indenture. ARTICLE II THE BONDS Section 2.01. Authorization. There are hereby authorized to be issued bonds of the Issuer designated as 'City of Cupertino Multifamily Housing Revenue Bonds (Heart of Cupertino Project), Series 2001A" in the initial aggregate principal amount of up to $1,600,000. No Bonds may be issued hereunder except in accordance with this Article. The maximum aggregate principal amount of Bonds which may be issued and outstanding under this Indenture shall not exceed the Authorized Amount. Section 2.02. Terms of Bonds. The Bonds shall be in substantially the form set forth in Exhibit A hereto with necessary or apprepriate variations, omissions and inser{ions as permitted or required by this Indenture, including any supplemental indenture. The Bonds shall be issuable only as fully registered Bonds, without coupons, in the form of a single Bond in the principal amount equal to the aggregate of the purehase price of the Bonds advanced from time to time by the owner of the Bonds (which principal amount shall be, on the Closing Data, $ }. The Bonds shall be dated the Closing Date, shall mature on October 1, 2031, shall bear interest at a rate of six and three eighths pement (6.375%) per annum and shall be subject to redemption prior to matu~'7 as previded in Article IV. Each Bond shall bear interest from the date to which interest has been paid on the Bonds next preceding the date of its authentication, unless it is authenticated as of an Interest Payment Date for which interest has been paid, in which event it shall bear interest from such Interest Payment Date, or unless it is authenticated on or before the tiret interest Payment Date, in which event it shall bear interest from the Closing Date. Intamst shall be computed on the basis of a 360 day year comprised of twelve 30-day months. Section 2.03. Payment of Bonds. Payment of the principal of and interest on any Bond shall be made in lawful money of the United States to the person appearing on the Bond registration books of the Bondowner Representative as the registered owner thereof on the applicable Interest Payment Date, such principal and interest to be paid by check mailed on the Interest Payment Date by fimt class mail, postage prepaid, to the registered owner at its address as it appeare on such registration books, except that the Bondowner Representative may, at the request of any registered owner of Bonds, make payments of principal and interest .on such Bonds by wire transfer to the account within the United States designated by such owner to the Bondowner Representative in writing, any such designation to remain in effect until withdrawn in writing. Section 2.04. Execution of Bonds. The Bonds shall be signed in the name and on behalf of the Issuer with the manual or facsimile signature of its Mayor and the manual or facsimile signature of its City Clerk or other authorized officer, under the seal of the Issuer. Such seal may be in the form of a facsimile of the Issuer's seal and may be imprinted or impressed upon the Bonds. The Bonds shall then be delivered to the Bondowner Representative for authentication by the Bondowner Representative. In case any officer who shall have signed any of the Bonds shall cease to be such officer before the Bonds so signed shall have been authenticated or delivered by the Bondowner Representative or issued by the Issuer, such Bonds may nevertheless be authenticated, delivered and issued and, upon such authentication, delivery and issuance, shall be as binding upon the Issuer as though the officers who signed the same had continued to be such officers of the Issuer. Nso, any Bond may be signed on behalf of the Issuer by such persons as on the actual date of the execution of such Bond shall be the proper officers although on the nominal date of such Bond any such person shall not have been such officer. Only such of the Bonds as shall bear thereon a certificate of authentication in the form set forth in Exhibit A, manually executed by the Bondowner RepresentaJve, shall be valid or obligatory for any purpose or entitled to the benefits of this Indenture and such certJficata of the Bondowner Representative shall be conclusive evidence that the Bonds so authenticated have been duly authenticated and delivered hereunder and are entitled to the benefits of this Indenture. Section 2.05. Transfer of Bonds. Any Bond may, in accordance with the terms of this Indenture but in any event subject to the prior written consent of the Issuer, be transferred upon the books of the Bondowner Representative, required to be kept pursuant to the provisions of Section 2.06, by the person in whose name it is registered, in person or by his duly authorized attorney, upon surrender of such Bond for cancellation at the Principal Office of the Bondowner Representative, accompanied by a wdtten instrument of transfer in a form acceptable to the Bondowner Representative, duly executed, and the wdtten consent of the Issuer to such transfer. Bonds may not be exchanged for smaller denominations. Whenever any Bond shall be surrendered for transfer, the Issuer shall execute and the Bondowner Representative shall authenticate and deliver a new Bond. The Bondowner Representative shall require the payment by the Bondholder requesting any such transfer of any tax, fee or other govemmental charge required to be paid with respect to such transfer, but any such transfer shall otherwise be made without charge to the Bondholder requesting the same. The cost of printing any Bonds and any services rendered or any expenses incurred by the Bondowner Representative in connection therewith shall be paid by the Borrower. Section 2,06. Bond Register. The Issuer hereby appoints the Bondowner Representative as registrar and authenticating agent for the Bonris. The Bondowner Representative will keep or cause to be kept at its Principal Office sufficient books for the transfer of the Bonds, which shall at all reasonable times upon reasonable notice be open to inspection by the Issuer and the Borrower; and, upon presentation for such purpose, the Bondowner Representative as registrar shall, under such reasonable regulations as it may prescribe, transfer or cause to be transferred, on said books, Bonds as hereinbefore provided. ARTICLE III ISSUANCE OF BONDS; APPLICATION OF PROCEEDS Section 3.01. Authentication and Delivery of the Bonds. Upon the execution and delivery of this Indenture, the Issuer shall execute the Bonds and deliver them to the Bondowner Representative. Thereupon, and upon satisfaction of the conditions set forth in this Section, and without any further action on the part of the Issuer, the Bondowner Representative shall authenticate the Bonds in an aggregate principal amount not exceeding the Authorized Amount, and shall deliver them pumuant to the Written Order of the Issuer hereinafter mentioned. Prior to the authentication and delivery of any of the Bonds by the Bondowner Representative, there shall have been delivered to the Bondowner Representative each of the following: (i) a Certified Resolution authorizing issuance and sale of the Bonds and execution and deliver/ by the Issuer of the Indenture, the Loan Agreement and the Regulatory Agreement; (ii) original executed counterparts of this Indenture, the Loan Agreement, the Dccd of Trust and the Regulatory Agreement, and the original executed Note; and (iii) a Written Order of the Issuer to the Bondowner Representative to authenticate and deliver the Bonds as directed in such Written Order, upon payment to the Bondowner Representative, for the account of the Issuer, of the initial advance of the principal of the Bonds by the Bond pumhaser of $ Section 3.02. Application of Proceeds of Bonds. The proceeds received on the Closing Date by the Issuer from the sale of the Bonds shall be deposited with the Bondowner Representative, who shall deposit such proceeds in the Program Fund created pursuant to Section 3.03. The Bondowner Representative shall deposit any future advances of the purchase price of the Bonds to the Program Fund. Section 3.03. Program Fund. (a) There is hereby created and established with the Bondowner Representative a fund which shall be designated the 'Program Fund.' Upon the initial delivery of the Bonds, there shall be deposited in the Program Fund the amount specified in Section 3.02. The Bondowner Representative shall deposit any future advances of the purchase price of the Bonds to the Program Fund. Amounts deposited or held in such fund shall be applied only as provided in this Section. (b) The amount deposited in the Program Fund on the Closing Date shall be disbursed as follows: $ shall be sent via wire transfer from the Bondowner Representative to (to pay a portion of the costs of acquisition of the Development site), and $ shall be sent to the Bondowner in respect of its fees and expenses related to the Bond financing. (c) The Issuer hereby authorizes and directs the disbursement by the Bondowner Representative to the Borrower of the remaining $ principal amount of the Bonds and any other amounts deposited from time to time to the Program Fund upon compliance with the provisions of Section 3.4(b) of and Exhibit D to the Loan Agreement. The Bondowner Representative shall provide monthly written reports to the Issuer indicating any disbursements from the Program Fund during the preceding month, including the amount disbursed and the date of disbursement. (d) Neither the Bondowner Representative nor the Issuer shall be responsible for the application by the Borrower of monies disbursed to the Borrower in accordance with this Section 3.03. '- (e) From and after October 1, 2003, no further advances of the purchase price, or disbursements of the proceeds, of the Bonds shall occur. ARTICLE IV REDEMPTION OF BONDS Section 4.01. Circumstances of Redemption. The Bonds are subject to redemption upon the circumstances, on the dates and at the prices set forth as follows: (a) The Bonds shall be subject to redemption in whole or in part on any date, at a price equal to the principal amount of Bonds to be redeemed plus interest accrued thereon to the date fixed for redemption, without premium, upon prepayment of the Loan in whole or in part. (b) The Bonds shall be subject to redemption in=whole on any date at a price equal to the principal amount of Bonds to be redeemed plus interest accrued thereon to the date fixed for redemption, without premium, upon accelerefion of the Loan in whole following an Event of Default (as defined in the Loan Agreement). (c) The Bonds shall be subject to redemption in whole or in part on any date at a price equal to the principal amount thereof to be redeemed plus accrued interest to the redemption date from the proceeds of any mandator~ prepayment of the Loan under the terms of the Note or the Loan Agreement. The Bondowner Representative is hereby authorized and directed, and hereby agrees, to fix the date for any such redemption, and, if moneys provided from the sources contemplated by this Indenture and the Loan Agreement are available, to redeem the Bonds so called on the date so fixed by the Bondowner Representative. The Bondowner Representative shall give written notice of such redemption to the Issuer. Section 4.02. No Notice of Redemption. No notice of redemption of the Bonds need be given. Section 4.03. Effect of Redemption. Moneys for payment of the redemption price of Bonds being held by the Bondowner Representative, the Bonds so celled for redemption shall, on the redemption date selected by the Dondowner Representative, become due and payable at the redemption price specified herein, interest on the Bonds so called for redemption shall cease to accrue, said Bonds shall cease to be entitled to any lien, benefit or security under this Indenture, and the holders of said Bonds shall have no rights in respect thereof except to receive payment of the redemption price thereof. All Bonds fully redeemed pursuant to the provisions of this ArtJcle IV shall be destroyed by the Bondowner Representative, which shall thereupon deliver to the Issuer a certificaie evidencing such destruction. -11- · - ARTICLE V REVENUES Section 5.01. Pledge of Revenues. All of the Revenues are hereby irrevocably pledged to the punctual payment of the principal of and interest on the Bonds. The Issuer also hereby transfers in trust, grants a security interest in and assigns to the Bondowner Representative, for the benefit of the holders from time to time of the Bonds all of its right, title and interest in (a) the Revenues, (b) amount on deposit in any fund or account created hereunder or under the Loan Agreement and held by the Bondowner Representative, (c) the Deed of Trust, (d) the Loan Agreement (except for the rights of the Issuer under Sections 2.3, 2.4, 5.1(b), 5.1(d) and 7.4 thereof), and (e) the Note. All Revenues and all amounts on deposit in the funds and accounts created hereunder or under the Loan Agreement and held by the Bondowner Representative shall be held in trust for the benefit of the holders from time to time of the Bonds, but shall neve~eless be disbursed, allocated and applied solely for the uses and purposes hereinafter set forth in this Article V. Neither the Issuer (or any member thereof) nor any person executing lhe Bonds is liable personally on the Bonds or subject to any personal liability or accountability by reason of their issuance. The Bonds are limited obligations of the Issuer and are not a debt, nor a pledge of the faith and credit, of the State of California or any of its political subdivisions, and neither are they liable on the Bonds, nor are the Bonds payable out of any funds or properties other than those of the Issuer pledged for the payment thereof. The Bonds do not constitute an indebtedness within the meaning of any constitutional or statutory debt limitation. The issuance of the Bonds shall _ not directly or indirectly or contingently obligate the State of Califomia or any political subdivision thereof to levy or to pledge any form of taxation whatever therefor or to make any appropriation for their payment. Section 5.02. Bond Fund, There is hereby created and established with the Bondowner Representative a separate fund which shall be designated the "Bond Fund," which fund shall be applied only as provided in this Section. The Bondowner Representative shall deposit in the Bond Fund from time to time, upon receipt thereof, all Revenues, including (i) income received from the investment of moneys on deposit in the Bond Fund, and (ii) any other Revenues, including insurance proceeds, condemnation awards and other Loan payments or prepayments received from or for the account of the Borrower. The Bondowner Representative shall provide notice to the Issuer, at least monthly, of any amounts received by the Bondowner Represantaive which constitute Revenues or are otherwise deposited to the Bond Fund, and of any failure by the Borrower to make timely payments on the Note. Except as provided in Section 10.03, moneys in the Bond Fund shall be used solely for the payment of the principal of and premium, if any, and interest on the Bonds es the same shall become due, whether at maturity or upon redemption or acceleration or otherwise. On each date on which principal of or interest on the Bonds is due and payable, the Bondowner Representative shall pay such amount from the Bond Fund. Section 5.03. Investment of Moneys. Except as otherwise provided in this Section, any moneys in any of the funds and accounts to be established by the Bondowner Representative pursuant to this Indenture shall be invested by the Bondowner Representative in Investment SecuritJes selected and directed in writing by the Borrower, -. with respect to which payments of principal thereof and interest thereon are scheduled or otherwise payable not later than one day prior to the date on which it is estimated that such moneys will be required by the Bondowner Representative. In the absence of such directions, the Bondowner Representative shall invest such monies in Investment Securities described in clause (b) of the definition thereof. The Bondowner Representative shall have no liability or responsibility for any loss resulting from any investment made in accordance with this Section 5.06. Except as otherwise provided in the next sentence, all investments of amounts deposited in any fund or account created by or pursuant to this Indenture, or otherwise containing gross proceeds of the Bonds (within the meaning of Section 148 of the Code) shall be acquired, disposed of, and valued (as of the date that valuation is required by this Indenture or the Code) at Fair Market Value. Investments in funds or accounts (or portions thereof) that are subject to a yield restriction under applicable provisions of the Code and (unless valuation is undertaken at least annually) investments in the Debt Service Reserve Fund shall be valued at their present value (within the meaning of Section 148 of the Code). The Bondowner Representative shall have no duty to determine Fair Market Value or present value hereunder. For the purpose of determining the amount in any fund or account, all Investment Securities credited to such fund or account shall be valued at the lower of cost or par (which shall be measured exclusive of accrued interest) after the first payment of interest following purchase. Any interest, profit or loss on such investment of moneys in any fund or account shall be credited or charged to the respective funds or accounts from which such investments are made. The Bondowner Representative may sell or present for redemption any obligations so purchased whenever it shall be necessary in order to provide moneys to meet any payment, and the Bondowner Representative shall not be liable or responsible for any loss resulting from such sale or redemption. The Bondowner Representative may make any and all investments permitted under this Section 5.06 through its own trust or banking department or any affiliate and may pay said department reasonable, customary fees for placing such investments. The Bondowner Representative and its affiliates may act as principal, agent, sponsor, advisor or depository with respect to Investment Securities under this Section 5.06. The Issuer (and the Borrower by its execution of the Loan Agreement) acknowledges that to the extent regulations of the Comptroller of the Currency or other applicable regulatory entity grant the Issuer or the Borrower the dght to receive brokerage confirmations of security transactions as they occur, the Issuer and the Borrower will not receive such confirmations to the extent permitted by law. The Bondowner Representative will fumish the Borrower and the Issuer (to the extent requested by it) periodic cash transaction statements which include detail for all investment transactions made by the Bondowner Representative hereunder. Section 5.04. Assignment to Bondowner Representative; Enforcement of Obligations. The Issuer hereby transfers, assigns and sets over.to the Bondowner Representative, for the benefit of the Bondholders, and the Bondowner Representative hereby accepts, all of the Revenues, all moneys at any time held in the funds and accounts established hereunder and any and all rights and privileges the Issuer has under the Agreement (except for the Issuer's rights under Sections 2.3, 2.4, 5.1(b), 5.1(d) and 7.4 of the Agreement); and any Revenues which are collected or received by the Issuer shall be deemed to be held, and to have been collected or received, by the Issuer as the agent of the Bondowner Representative, and shall fo~with be paid by the Issuer to the Bondowner Representative. Upon the occurrence of an Event of Default actually known to a Responsible Officar of the Bondowner Representative, the Bondowner Representative also shall be entitled to take all steps, actions and proceedings reasonably necessary in its judgment: (a) to enforce the terms, covenants and conditions of, and preserve and protect the priority of its interest in and under, the Agreement and the Deed of Trust, and (b) to request compliance with all covenants, agreements and conditions on the part of the Issuer contained in this Indenture with respect to the Revenues. · - ARTICLE VI COVENANTS OF THEISSUER Section 6.01. Payment of Principal and interest. The Issuer shall punctually pay, but only out of Revenues as herein provided, the principal and the interest (and premium, if any) to become due in respect of every Bond issued hereunder at the times and places and in the manner provided herein and in the Bonds, according to the true intent and meaning thereof. When and as paid in full, all Bonds shall be delivered to the Bondowner Representative and shall forthwith be destroyed. Section 6.02. Paying Agents. The.Issuer, with the written approval of the Bondowner Representative, may appoint and at all times have one or more paying agents in such place or places as the Issuer may designate, for the payment of the principal of, and the interest (and premium, if any) on, the Bonds. It shall be the duty of the Bondowner Representative to make such arrangements with any such paying agent as may be necessary and feasible to assure, to the extent of the moneys held by the Bondowner Representative for such payment, the availability of funds for the prompt payment of the principal of and interest and premium, if any, on the Bonds presented at either place of payment. The paying agent initially appointed hereunder is the Bondowner Representative. Section 6.03. Preser~ation of Revenues; Amendment of Documents. The Issuer shall not take any action to interfere with or impair the pledge and assignment hereunder of Revenues and the assignment to the Bondowner Representative of rights of the Issuer under the Agreement and the Deed of Trust, or the Bondowner Representative's enforcement of any rights hereunder or thereunder, shall not take any action to impair the validity _. or enfomeability of the Agreement or the Deed of Trust, and shall not waive any of its rights under or any other provision of or permit any amendment of the Agreement or the Deed of Trust, without the prior written consent of the Bondowner Representative provided that such consent of the Bondowner Representative shall not be required if the Bondowner Representative shall have received an opinion of Bond Counsel to the effect that such amendment (a) is required to preserve the exclusion of interest on the Bonds from gross income for federal income tax purposes or compliance by the Bonds or the Development with the Act and the laws of the State of Califomia; or (b) will not adversely affect the interests of the Bondholders. The Bondowner Representative may give such written consent, and may itself take any such action or consent to a waiver of any provision of or an amendment or modification to or replacement of the Agreement, the Deed of Trust, the Regulatory Agreement or any other document, instrument or agreement relating to the security for the Bonds, only if (i) such action or such waiver, amendment, modification or replacement (a) is authorized or required by the terms of this Indenture, the Agreement, the Deed of Trust or the Regulatory Agreement, or (b) will not, based on an Opinion of Counsel furnished to the Bondowner Representative, materially adversely affect the interests of the holders of the Bonds or result in any impairment of the secu~y hereby given for the payment of the Bonds, or (c) has first been approved by the written consent of the holders of the Bonds then outstanding; (ii) any such action or such waiver, amendment, modification or replacement will not have the effect of extending ~ time for payment or reducing the amount due and payable; and (iii) the Bondowner Representative shall have first obtained an opinion of Bond Counsel to the effect that such action or such waiver, amendment, modification or replacement will not adversely affect the exclusion of interest on the Bonds from gross income for federal income tax purposes or conformance of the Bonds and the Development with the ACt or the laws of the State of Califomia relating to the Bonds. Section 6.04. Compliance with Indenture. The Issuer shall not issue, or permit to be issued, any Bonds - secured or payable in any manner out of Revenues other than in accordance with the provisions of this Indenture; it being understood that the Issuer reserves the right to issue obligations payable from and secured by sources other than the Revenues and the assets assigned herein. The issuer shall not suffer or permit any default to occur under this Indenture, but shall faithfully observe and perform all the covenants, conditions and requirements hereof. So long as any Bonds are outstanding, the Issuer shall not create or suffer to be .created any pledge, lien or charge of any type whatsoever upon ali or any part of the Revenues, other than the lien of this Indenture. Section 6.05. Further Assurances. Whenever and so often as requested so to do by the Bondowner Representative, the Issuer shall promptly execute and deliver or cause to be executed and delivered all such other and further instruments, documents or assurances, and promptly do or cause to be done all such other and further things, as may be necessary or reasonably required in order to further and more fully vest in the Bondowner Representative and the Bondholdem all of the rights, interests, powers, benefits, privileges and advantages conferred or intended to be conferred upon them by this Indenture and to perfect and maintain as perfected such dghts, interests, powers, benefits, privileges and advantages. Section 6.06. No Arbitrage. The Issuer shall not take, nor permit nor suffer to be taken by the Bondowner Representative or otherwise, any action with respect to the gross proceeds of the Bonds which if such action had been reasonably expected to have been taken, or had been deliberately and intentionally taken, on the date of the issuance of the Bonds would have caused the Bonds to be "arbitrage bonds" within the meaning of Section 148(a) of the Code and Regulations promulgated thereunder. Section 6.07. Limitation of Expenditure of Proceeds. The Issuer shall assure that not less than 97 pement of the face amount of the Bonds, plus premium (if any) paid on the purchase of the Bonds by the odginal purchaser thereof from the Issuer, less odginal discount, are used for Qualired Development Costs. Section 6.08. Rebate of Excess Investment Earnings to United States. The Issuer hereby covenants to cause the Borrower to calculate or cause to be calculated excess investment eamings to the extent required by Section 148(f) of the Code and the Borrower shall cause payment of an amount equal to excess investment earnings to the United States in accordance with the Regulations, all at the sole expanse of the Borrower. Section 6.09. Umltation on Issuance Costs. The Issuer shall assure that, from the proceeds of the Bonds received from the original purchaser thereof and inves[,-~ent eamings thereon, an amount not in excess of two percent (2%) of the face amount of the Bonds shall be used to pay for, or provide for the payment of, Issuance Costs. For this purpose, if the fees of such original purchaser are retained as a discount on the purchase of the Bonds, such retention shall be deemed to be an expenditure of proceeds of the Bonds for said fees. Section 6.10. Federal Guarantee Prohibition. The Issuer shall take no action nor permit nor suffer any action to be taken if the result of the same would be to cause the Bonds to be 'federally guaranteed' within the meaning of Section 149(b) of the Code. Section 6.11. Prohibited Facilities. No portion of the proceeds of the Bonds shall be used to provide any airplane, skybox or other private luxury box, health club facility, facility primarily used for gambling, or store the principal business of which is the sale of alcoholic beverages for consumption off premises. No portion of the proceeds of the Bonds shall be used for an office unless the office is located on the premises of the facilities constituting the Development and unless not more than a de minimus amount of the functions to be performed at such office is not related to the day-to-day operations of the Development. Section 6.12. Use Covenant. The Issuer shall not use or knowingly permit the use of any proceeds of Bonds or any other funds of the Issuer, directly or indirectly, in any manner, and shall not take or permit to be taken any other action or actions, which would result in any of the Bonds being treated as an obligation not described in Section 145 of the Code by reason of such Bond not meeting the requirements of Section 145 of the Code. -- Section 6.t3. Immunities and Limitations of Responsibility of issuer. The Issuer shall be entitled to the advice of counsel (who, except as othenvise provided, may be counsel for any Bondholder), and the issuer shall be wholly protected as to action taken or omitted in good fai~..i~ reliance on such advice. The Issuer may rely conclusively on any communication or other document fumished to it hereunder and reasonably believed by it to be genuine. The Issuer shall not be liable for any action (a) taken by it in good faith and reasonably believed by it to be within its discretion or powers hereunder, or (b) in good faith omitted to be taken by it because such action was reasonably believed to be beyond its discretion or powers hereunder, or (c) taken by it pursuant to any direction or instruction by which it is governed hereunder, or (d) omitted to be taken by it by reason of the lack of any direction or instruction required hereby for such action; nor shall it be responsible for the consequences of any error of judgment reasonably made by it. The Issuer shall in no event be liable for the application or misapplication of funds or for other acts or defaults by any person, except its own omcers and employees. When any payment or consent or other action by it is called for hereby, it may defer such action pending receipt of such evidence (if any) as it may require in support thereof. The issuer shall not be required to take any remedial action (other than the giving of notice) unless indemnity in a form acceptable to the Issuer is furnished for any expense or liabil~ to be incun'ed in connection w~th such remedial action, other than liability for failure to meet the standards set forth in this Section. The Issuer shall be entitled to reimbursement from the Borrower for its expenses reasonably incurred or advances reasonably made, with interest at the rate of interest on the Bonds, in the exercise of its fights or the performance of its obligations hereunder, to the extent that it acts without previously obtaining indemnity. No permissive fight or power to act which the Issuer may have shall be construed as a requirement to act; and no delay in the exercise of a fight or power shall affect its subsequent exercise of the fight or power. The Borrower has indemnified the issuer against certain acts and events as set forth in Section 6.7 of the Loan Agreement and Section 7 of the Regulator/Agreement. Such indemnities shall survive payment of the Bonds and discharge of the Indenture. Section 6.14. Small issuer Exemption from Bank Nondeductibility Restriction. The Issuer hereby designates the Bonds for purposes of paregreph (3) of section 265(b) of the Code and represents that not more than $10,000,000 aggregate principal amount of obligations the interest on which is excludable (under section 103(a) of the Code) from gross income for federal income tax purposes (excluding (i) pfivata activity bonds, as defined in section 141 of the Code, except qualified 501(c)(3) bonds as defined in section 145 of the Code, and (ii) current refunding obligations to the extent the amount of the refunding obligation does not exceed the outstanding amount of the refunded obligation), including the Bonds, has been or will be issued by the Issuer, including all subordinate entities of the Issuer, dudng the calendar year 2001. AETICLE VII DEFAULT Section 7.01. Events of Default; Acceleration; Waiver of Default. Each of the following events shall constitute an "Event of Default" hereunder. (a) failure to pay the principal of any Bond within ten (10) days of the date when and as the same shall become due and payable, whether at maturity as therein expressed, by proceedings for redemption, by declaration or otherwise; (b) failure to pay any installment of interest On any Bond within tan (10) days of the date when such interest installment shall become due and payable; (c) the occurrence of an Event of D~fault under the Loan Agreement; and (d) failure by the Issuer to perform or observe any other of the covenants, agreements or conditions on its part in this Indenture or in the Bonds contained, and the continuation of such failure for a period of thirty (30) days after written notice thereof, specifying such default and requiring the same to be remedied, shall have been given to the Issuer and the Borrower by the Bondowner Representative, or to the Issuer, the Borrower and the Bondowner Representative by the holders of not less than twenty-five percent (25%) in aggregate principal amount of the Bonds at the time outstanding. No default specified in (d) above shall'cons~idte an Event of Default unless the Issuer or the Borrower shall have failed to correct such default within the applicable period; provided, however, that if the default shall be such that it cannot be corrected within such period, it shall not constituta an Event of Default if con'ective action is instituted by the 'issuer or the Borrower within the applicable period and diligently pursued until the default is corrected not to exceed ninety (90) days (provided that a default by reason of nonpayment of Bondowner Representative's fees and expenses may only be waived by the Bondowner Representative). W'n'h regard to any alleged default concerning which notice is given to the Borrower under the previsions of (d) above, the Issuer hereby grants the Borrower full authority for the account of the Issuer to perform any covenant or obligation the non- performance of which is alleged in said notice to constitute a default in the name and stead of the Issuer with full power to do any and all things and acts to the same extent that the Issuer could do and perform any such things and acts and with power of substitution. During the continuance of an Event of Default described in (a), (b) or (c) above, unless the principal of all the Bonds shall have already become due and payable, the Bondowner Representative may, and upon the occurrence of any Event of Default specified in (a), (b) or (c) above or upon the written request of the oweere of all of the Bonds at the time outstanding in the case of an Event of Default described in (d) above, the Bondowner Representative shall, by notice in writing to the Issuer, declare the principal of all the Bonds then outstanding, and the interest accrued thereon, to be due and payable immediately, and upon any such declaration the same shall become and shall be immediataly due and payable, anything in this Indenture or in the Bonds contained to the contrary notwithstanding. Upon any such declaration of acceleration, the Bondowner Representative shall fix a data for payment of the Bonds. The preceding paragraph, however, is subject to the condition that if, at any time after the principal of the Bonds shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entared as hereinafter provided, there shall have been deposited with the Bondowner Representative a sum sufficient to pay all the principal of the Bonds matured or required to be redeemed prior to such declaration and all matured installments of interest (if any) upon all the Bonds, with intarest on such -- overdue installments of principal, and the reasonable fees and expenses of the Bondowner Representative, its agents and counsel, and any and all other defaults actually known to a Responsible Officer of the Bondowner Representative (other than in the payment of principal of.and interest on the Bonds due and payable solely by reason of such declaration) shall have been made good or cured to the satisfaction of the Bondowner Representative or provision deemed by the Bondowner Representative to be adequate shalt have been mede therefor, then, and in every such case, the holders of at least a majority in aggregate principal amount of the Bonds then outstanding, by written notice to the issuer and to the Bondowner Representative and with indemnification satisfactory to the Bondowner Representative, may, on behalf of the holders of all the Bonds, rescind and annul such declaration and its consequences and waive such default; but no such rescission, annulment or waiver shall extend to or shall affect any subsequent default, or shall impair or exhaust any right or power consequent thereon. Section 7.02. Institution of Legal Proceedings by Bondowner Representative. If one or more of the Events of Default shall occur and be continuing, the Bondowner Representative in its discretion may, and upon the written request of the holders of a majority in principal amount of the Bonds then outstanding and upon being indemnified to its satisfaction therefor the Bondowner Representative shall, proceed to protect or enforce its rights or the rights of the holders of Bonds under the ACt or under this Indenture and the Agreement, by a suit in equity or action at law, either for the specific performance of any covenant or agreement contained herein or therein, or in aid of the execution of any power herein or therein granted, or by mandamus or other appropriate proceeding for the enforcement of any other legal or equitable remedy as the Bondowner Representative shall deem most effectual in support of any of its rights or duties hereunder; provided that any such request fi'om the Bondholders shall not be in conflict with any rule of law or with this Indenture, expose the Bondowner Representative to personal liability or be unduly prejudicial to Bondholders not joining therein. Section 7.03. Application of Moneys Collected by Bondowner Representative. Any moneys collected by the Bondowner Representative pursuant to Section 7.02 shall be applied in the order following, at the date or dates fixed by the Bondowner Representative and, in the case of distribution of such moneys on account of principal (or premium, if any) or interest, upon presentation of the Bonds and stamping thereon the payment, if only pardally paid, and upon surrender thereof, if fully paid: First: For payment of all amounts due to the Bondowner Representative under Section 8.06. Second: For deposit in the Bond Fund to be applied to payment of the principal of all Bonds then due and unpaid and interest thereon; ratably to the persons entitled thereto without discrimination or preference. Third: For payment of all other amounts due to any person hereunder or under the Loan Agreement. Section 7.84. Effect of Delay or Omission to Pursue Remedy. No delay or omission of the Bondowner F~epresentative or of any holder of Bonds to exercise any right or power arising from any default shall impair any such right or power or shall be construed to be a waiver of any such default or acquiescence therein, and every power and remedy given by this Article VII to the Bondowner Representative or to the holders of Bonds may be exercised from time to time and as often as shall be deemed expedient. In case the Bondowner Representative shall have proceeded to enforce any right under this Indenture, and such proceedings shall have been discontinued or abandoned because of waiver or for any other reason, or shall have been determined adversely to the Bondowner Representative. then and in every such case the Issuer, the Bondowner Representative and the holders of the Bonds, severally and respectively, shall be restored to their former positions and rights hereunder in respect to the .-. trust estate; and all remedies, rights and powers of the Issuer, the Bondowner Representative and the holders of the Bonds shall continue as though no such proceedings hed been taken, Section 7.05. Remedies Cumulative. No remedy herein conferred upon or reserved to the Bondowner Representative or to any holder of the Bonds is intended to be exclusive of any other remedy, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity. Section 7.06. Covenant to Pay Bonds in Event of Default. The Issuer covenants that, upon the happening of any Event of Default, the Issuer will pay to the Bondowner Representative upon demand, but only out of Revenues, for the benefit of the holders of the Bonds, the whole amount then due and payable thereon (by declaration or otherwise) for interest or for principal, or beth, as the case may be, and ail other sums which may be due hereunder or secured hereby, including reasonable compensation to the Bondowner Representative, its agents and counsel, and any expenses or liabilities incurred by the Bondowner Representative hereunder. In case the Issuer shall fail to pay the same forthwith upon such demand, the Bondowner Representative, in its own name and as Bondowner Representative of an express trust, and upon being indemnified to its satisfaction shall be entitled to institute proceedings at law or in equity in any court of competent jurisdiction to recover judgment for the whole amount due and unpaid, together with costs and reasonable attomeys' fees, subject, however, to the condition that such judgment, if any, shall be limited to, and payable solely out of, Revenues and any other assets pledged, transferred or assigned to the Bondowner Representative under Section 5.06 as herein provided and not otherwise. The Bondowner Representative shall be entitled to recover such judgment as aforesaid, either before or after or during the pendency of any proceedings for the enforcement of this indenture, and the right of the Bondowner Representative to recover such judgment.shell not be affected by the exemise of any other right, power or remedy for the enforcement of the provisions of this Indenture. Section 7.07. Bondowner Representative Appointed Agent for Bondholders. The Bondowner Representative is hereby appointed the agent of the holders of all Bonds outstanding hereunder for the purpose of filing any claims relating to the Bonds. Section 7.08. Power of Bondowner Representative to Control Proceedings. In the event that the Bondowner Representative, upon the happening of an Event of Default, shall have taken any action, by judicial proceedings or otherwise, pursuant to its duties hereunder, whether upon its own discretion or upon the written request of the holders of a majority in principal amount of the Bonds then outstanding, it shall have full power, in the exercise of its discretion for the best interests of the holders of the Bonds, with respect to the continuance, discontinuance, withdrawal, compromise, settlement or other disposal of such action; provided, however, that the Bondowner Representative shall not, unless there no longer continues an Event of Default hereunder, discontinue, withdraw, compromise or settle, or otherwise dispose of any litigation pending at law or in equity, if at the time there has been filed with it a written request signed by the holders of at least a majo~y in principal amount of the Bonds outstanding hereunder opposing such discontinuance, withdrawal, compromise, settlement or other disposal of such litigation. Section 7.09. Limitation on Bondholders' Right to Sue. No holder of any Bond issued hereunder shall have the right to institute any suit, action or proceeding at law or in equity, for any remedy under or upon this indenture, unless (a) such holder shall have previously given to the Bondowner Representative written notice of the occurrence of an Event of Default hereunder, (b) the holders of at least a majority in aggregate principal amount of all the Bonds then outstanding shall have mede written request upon the Bondowner Representative to exercise the powers hereinbefore granted or to institute such action, suit or proceeding in its own name; (c) said holders shall have tendered to the Bondowner Representative indemnity satisfactory to it against the costs, expenses and liabilities to be incun'ed in compliance with such request; and (d) the Bondowner Representative shall have refused or omitted to comply with such request for a period of thirty (30) days after such written request shall have been received by, and said tender of indemnity shall have been made to, the Bondowner Representative. Such notification, request, tender of indemnity and refusal or omission are hereby declared, in every case, to be conditions precedent to the exemise'by any holder of Bonds of any remedy hereunder;, it being understood and intended that no one or more holders of Bonds shall.have any right,in any manner whatever by its or their action to enfome any right under this Indenture, except in the manner herein provided, and that all proceedings at law or in equity to enfome any provision of this Indenture shall be instituted, had and maintained in the manner herein provided and for the equal benefit of all holders of the outstanding Bonds. The right of any holder of any Bond to receive payment of the principal of (and premium, if any) and interest on such Bond out of Revenues, as herein and therein provided, on and after the respective due dates expressed in such Bond, or to institute suit for the enfomement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such holder, notwithstanding the foregoing provisions of this Section or any other provision of this Indenture. Section 7.10. Limitation of Liability to Revenues. Notwithstanding anything in this Indenture contained, the Issuer shall not be required to advance any moneys dedved from the proceeds of taxes collected by the Issuer, by the State of California or by any political subdivision thereof or from any source of income of any of the foregoing other than the Revenues for any of the purposes mentioned in this Indenture, whether for the payment of the principal of or interest on the Bonds or for any other purpose of this Indenture. The Bonds are limited obligations of the Issuer, and are payable from and secured by the Revenues only. ARTICLE VIII THE BONDOWNER REPRESENTATIVE AND AGENTS Section 8.01. Duties, Immunities and Liabilities of Bondowner Representative. The Bondowner Representative shall perform such duties and only such duties as are specifically set forth in this Indenture and no additional covenants or duties of the Bondowner Representative shall be implied in this Indenture. The Bondowner Representative shall, during the existence of any Event of Default (which has not been cured or waived), exercise such of the rights and powers vested in it by this indenture, and use the same degree of care and skill in their exercise, as reasonable persons familiar with such matters would exercise or use under similar circumstances in the conduct of their own affairs. No provision of this Indenture shall be construed to relieve the Bondowner Representative from liability for its own negligent action or its own negligent failure to act, except that: (a) the dudes and obligations of the Bondowner Representative shall be determined solely by the express provisions of this Indenture, the Bondowner Representative shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Bondowner Representative; and in the absence of bad faith on the part of the Bondowner Representative, the Bondowner Representative may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificate or opinion fumished to the Bondowner Representative conforming to the requirements of this Indenture; (b) At all times, regardless of whether or not any Event of Default shall exist, (1) the Bondowner Representative shall not be liable for any error of judgment made in good faith by a Responsible Officer or officers or by any agent or attorney of the Bondowner Representative appointed with due care unless (except as othezwise provided in Section 8.02(f)) the Bondowner Representative was negligent in ascertaining the pertinent facts; and (2) the Bondowner Representative shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer, accompanied by an opinion of Bond Counsel as provided herein or in accordance with the directions of the holders of not less than a majority, or such other percentage as may be required hereunder, in aggregate principal amount of the Bonds at the time outstanding relating to the time, method and place of conducting any proceeding for any remedy available to the Bondowoer Representative, or exercising any trust or power conferred upon the Bondowner Representative under this Indenture; (c) The Bondowner Representative shall not be required to take notice or be deemed to have notice of (i) any default hereunder or under the Loan Agreement, except defaults under Section 7.01(a) or (b) hereof, unless a Responsible Officer of the Bondowner Representative shall be specifically notified in writing of such default by the Issuer or the owners of at least twenty-live percent (25%) in aggregate principal amount of all Bonds then outstanding, or (ii) any default under the Regulatory Agreement unless a Responsible Officer of the Bondowner Representative shall be specifically notified in writing of such default by the Issuer, (d) Before taking any action under Arlicle VII hereof or this Section at the request or direction of the Bondholders, the Bondowner Representative may require that a satisfactory indemnity bond be furnished by the Bondholders, for the reimbursement of all expenses to which it may be put and to protect it against all liability, except liability which is adjudicated to have resulted from its negligence or willful misconduct in connection with any action so taken; -21 - (e) Upon any application or request by the Issuer to the Bondowner Representative to take any action under any provision of this Indenture, the Issuer shall fumish to the Bondowner Representative a Certificate of the Issuer stating that all'conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with, and an Opinion of Counsel stating that in the opinion of such Counsel all such conditions precedent, if any, have been complied with, except that in the case of any. such application or mqcest as to which the fumishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished; (f) The Bondowner Representative may execute any of the powers hereunder or perform any duties hereunder either directly or through agents or attorneys and the Bondowner Representative shall not be responsible for any negligence or misconduct on the part of any agent or attorney appointed with due care by it hereunder; (g) Neither the Issuer nor the Borrower shall be deemed to be agents of the Bondowner Representative for any purpose, and the Bondowner Representative shall not be liable for any noncompliance of any of them in connection with their respective duties hereunder or in connection with the transactions contemplated hereby; (h) The Bondowner Representative shall be entitled to rely upon telephonic notice for all purposes whatsoever so long as the Bondowner Representative reasonably believes such telephonic notice has been given by a person authorized to give such notice; (i) The immunities extended fo the Bondowner Representative also extend to its directors, officers, employees and agents; (j) Under no circumstances shall the Bondowner Representative be liable in its individual capacity for the obligations evidenced by the Bonds, it being the sole obligation of the Bondowner Representative to administer, for the benefit of the Bondholders, the various funds and accounts established hereunder, (k) No permissive power, right or remedy conferred upon the Bondowner Representative hereunder shall be constnJed to impose a duty to exercise such power, right or remedy; (I) The Bondowner Representative shall not be liable for any action taken or not taken by it in accordance with the direction of a majority (or other percentage expressly provided for herein with respect to a particular action) in aggregate principal amount of Bonds Outstanding related to the exercise of any right, power or remedy available to the Bondowner Representa'dve; and (m) The Bondowner Representative shall have no duty to review any financial statements or budgets filed with it by the Borrower under the Loan AgreemenL None of the provisions contained in this Indenture shall require the Bondowner Representative to expend or risk its own funds or othenvise incur individual financial liability in the performance of any of its duties or in the exercise of any of ils rights or powers. Whether or not therein expressly so provided, every provision of this Indenture, the Loan Agreement, the Regulatory Agreement or any other document relating to the conduct, powers or duties of, or affecting the liability of, or affording protection to, the Bondowner Representative shall be subject fo the provisions of this Article VIII. Section 8.02. Right of Bondowner RePresentative to Rely Upon Document, Etc. Except as otherwise provided in Section 8.01: (a) The Bondowner Representative may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond or other paper or document believed by it to be genuine and to have been signed and presented by the proper party or parties; (b) Any consent, demand, direction, election, notice, order or request of the Issuer mentioned herein shall be sufficiently evidenced by a Written Consent, Written Demand, Written Direction, Written Election, Written Notice, Written Order or Written Request of the Issuer, and any resolution of the issuer may be evidenced to the Bondowner Representative by a Certified Resolution; (c) The Bondowner Representative may consult with counsel (who may be counsel for the Issuer,' counsel for the Bondowner Representative or Bond Counsel) and the opinion of such counsel shall be tull and complete authorization and protection in respect of any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel; (d) Whenever in the administration of this Indenture the Bondowner Representative shall deem it necessar~ or desirable that a matter be proved or established prior to taking or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Bondowner Representative, be deemed to be conclusively proved and established by a Certificate of the Issuer, and such Certificate of the Issuer shall, in the absence of negligence or bad faith on the part of the Bondowner Representative, be tull warrant to the Bondowner Representative for any action taken or suffered by it under the provisions of this Indenture upon the faith thereof; and (e) The Bondowner Representative shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document, but the Bondowner Representative, in its discretion, may make such further inquir~ or investigation into such facts or matters as it may see fit. Section 0.03. Bondowner Representative Not Responsible for Recitals. The recitals contained herein and in the Bonds shall be taken as the statements of the Issuer, and the Bondowner Representative assumes no responsibility for the correctness of the same or for the correctness of the recitals in the Loan Agreement or the Regulatory Agreement. The Bondowner Representative shall have no responsibility with respect to any information, statement or recital in any offering memorandum or other disclosure material prepared or distributed with respect to the Bonds. The Bondowner Representative makes no representations as to the value or condition of any assets pledged or assigned as security for the Bonds, or as to the right, ~e or interest of the Issuer therein, or as to the security provided thereby or by this Indenture, the Loan Agreement or the Deed of Trust, or as to the compliance of the Development with the Act, or as to the tax-exempt status of the Bonds, or as to the technical or financial feasibility of the Development, or as to the validity or sufficiency of this Indenture as an instrument of the Issuer or of the Bonds as obligations of the Issuer. The Bondowner Representative shall not be accountable for the use or application by the issuer of any of the Bonds authenticated or delivered hereunder or of the use or application of the proceeds of such Bonds by the issuer or the Borrower or their agents. Section 8.04. Intervention by Bondowner Representative. The Bondowner Representative may intervene on behalf of the Bondholders in any judicial proceeding to which the Issuer is a party and which, in the opinion of the Bondowner Representative and its counsel, has a subetantlal bearing on the interests of owners of the Bonds and, subject to the provisions of Section 8.01(d), shall do so if requested in writing by the owners of a majority in aggregate principal amount of all Bonds then outstanding. Section 8.05. Moneys Received by Bondowner Representative to be Held in Trust. All moneys received by the Bondowner Representative shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law or as otherwise provided herein. The Bondowner Representative shall be under no liability for interest on any moneys received by it hereunder except such as it may agree with the Issuer to pay thereon. Any moneys held by the Bondowner Representative may be deposited by it in its banking department and invested in investment Secudties. Section 8.06. Compensation and Indemnification of Bondowner Representative and Agents. The Borrower is required under the Loan Agreement: (1) to pay to the Bondowner Representative reasonable compensation for all services rendered by it hereunder and under the other agreements related to the Bonds to which it is a party; (2) except as otherwise expressly provided herein, to reimburse the Bondowner Representative upon its request for all reasonable expenses, disbursements and advances incurred or mede by the Bondoweer Representative in accordance with any provision of this Indenture or other agreement related to the Bonds to which the Bondowner Representative is a party or incurred in complying with any request made by the Issuer with respect to the Bonds (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be adjudicated by a court of competent jurisdiction to be attributable in whole or in part to its negligence or bad faith; (3) to indemnify the Bondowner Representative for, and to hold it harmless against, any loss, liability or expense incurred without negligence or willful misconduct on its part, adsing out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending itself against any claim or liability in cennection with the exercise or performance of any of its powers or duties hereunder or other agreement related hereto to which the Bondowner Representative is a party; and (4) to indemnify the Bondowner Representative for any reasonable fees incurred during a period of default hereunder. If any property, other than cash, shall at any time be held by the Bondowner Representative subject to this Indenture, or any supplemental indenture, as security for the Bonds, the Bondowner Representative, if and to the extent authorized by a receivership, bankruptcy or other court of competent jurisdiction or by the instrument subjecting such property to the provisions of this Indenture as such security for the Bonds, shall be entitled but not obligated to make advances for the purpose of preserving such property or of discharging tax liens or other prior liens or encumbrances thereon. The rights of the Bondowner Representative to compensation for services and to payment or reimbursement for expenses, disbursements, liabilities and advances shall have and is hereby granted a lien and a security interest prior to the Bonds in respect of all property and funds held or collected by the Bondowner Representative as such, except funds held in trust by the Bondowner Representative for the benefit of the holders of particular Bonds, which amounts shall be held solely for the benefit of the Bondholders and used only for the payment of principal of and premium, if any, and interest on the Bonds. The Bondowner Representative's rights to immunities, indemnities and protection from liability hereunder and its rights to payment of its fees and expenses shall survive its resignation or removal and final payment of the Bonds. Section 8.07. Qualifications of Bondowner Representative. There shall at all times be a Bondowner Representative hereunder which shall be a corporation or banking association organized and doing business under the laws of the United States or of a state thereof. Any change in the Bondowner Representative shall be only at the written request of the owners of all of the Bonds outstanding. Section 8.08. Merger or Consolidation of Bondowner Representative. Any corporation or association into which the Bondowner Representative may be merged or with which it may be consolidated, or any corporation or association resulting from any merger or consolidation to which the Bondowner Representative shall be a party, or any corporation or association succeeding to the corporate ~st business of the Bondowner Representative, shall be the successor of the Bondowner Representative hereunder without the execution or filing of any paper or any further '7-3'7 act on the part of any of the parties hereto, anything herein to the contrary notwithstanding, provided that such successor Bondowner Representative shall be eligible under the provisions of Section 8.07. Section 8.09. Dealing in Bonds. The Bondowner Representative, in its individual capacity, may in good faith buy, sell, own, hold and deal in any of the Bonds, and may join in any action which any Bondholder may be entitled to take with like effect as if it did not act in any capacity hereunder. The Bondowner Representative in its individual capacity, either as principal or agent, may also engage in or be interested in any financial or other transaction with the Issuer, and may act as depository, Bondowner Representative or agent for any committee or body of Bondholders secured hereby or other obligations of the Issuer as freely as if it did not act in any capacity hereunder.' .- ARTICLE IX MODIFICATION OF iNDENTURE Section 9.01. Modification of Indenture. With the prior written consent of all of the holders of the Bonds at the time outstanding, evidenced as provided in Section 11.08, the Issuer and the Bondowner Representative may from time to time and at any time enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture; provided, however, that, except to the extent permitted by Section 9.01, no such supplemental indenture shall reduce the aforesaid percentage of holders of Bonds whose consent is required for the execution of such supplemental indentures. Upon receipt bY the Bondowner Representative of a Certified Resolution authorizing the execution of any such supplemental indenture, and upon the filing with the Bondowner Representative of evidence of the consent of Bondholders, as aforesaid, the Bondowner Representative shall join with the Issuer in the execution of such supplemental indenture, unless (i) such supplemental indenture affects the Bondowner Representative's own rights, duties or immunities under this Indenture or othenvise, in which case the Bondowner Representative may in its discretion, but shall not be obligated to, enter into such supplemental indenture; or (ii) such supplemental indenture affects the rights or obligations of the Borrower hereunder or under the Loan Agreement, in which case the Bondowner Representative shall enter into such supplemental indenture only if the Bondowner Representative has received the Borrower's wdtten consent thereto. It shall not be necessary for the consent of the Bondholders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof. Promptly after the execution by the issuer and the Bondowner Representative of any supplemental indenture pursuant to the provisions of this Section, the Bondowner Representative shall give Bondholders, by first class mail, a notice setting forth in general terms the substance of such supplemental indenture. Any failure of the Bondowner Representative to give such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture. A copy of any supplemental indenture shall be sent by the Bondowner Representative to the Rating Agency. Section 9.02. Effect of Supplemental Indenture. Upon the execution of any supplemental indenture pursuant to the provisions of this Article IX, this Indenture shall be and be deemed to be modified and amended in accordance therewith, and the respective rights, duties and obligations under this Indenture of the issuer, the Bondowner Representative and all holders of outstanding Bonds shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be part of the terms and conditions of this Indenture for any and all purposes. Section 9.03. Opinion of Counsel as to Supplemental Indenture. Subject to the provisions of Section 8.01, the Bondowner Representative shall be entitled to receive, and shall be fully protected in relying upon, an OpiniOn of Counsel as conclusive evidence that any supplemental indenture executed pursuant to the provisions of this Article IX is authorized and permitted by this Indenture. Section 9.04. Notation of Modification on Bonds; Preparation of New Bonds. Bonds authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article IX may bear a notation, in form approved by the Bondowner Representative and the Issuer as to any matter provided for in such ' - supplemental indenture, and if such supplemental indenture shall so provide, new Bonds, so modified as to conform, in the opinion of the Bondowner Representative and the Issuer, to any modification of this Indenture contained in any Such supplemental indenture, may be prepared and authenticated by the Bondowner Representative and delivered without cost to the holders of the Bonds then outstanding, upon surrender for cancellation of such Bonds in equal aggregate principal amounts. -27. --- ARTICLE X DEFEASANCE Section 10.01. Discharge of Indenture. If the entire indebtedness on all Bonds outstanding shall be paid and discharged in any one or more of the following ways: (a) by the payment of the principal of (including redemption premium, if any) and interest on ali Bonds outstanding; or (b) by the deposit or credit to the account of the Bondowner Representative, in trust, at or before maturity, of money or securities in the necessary amount (as provided in Section 10.04) to pay or redeem Bonds outstanding, whether by redemption or otherwise; or (c) by the delivery to the Bondowner Representative, for cancellation by it, of all Bonds outstanding; and if (i) all other sums payable hereunder by the Issuer shall be paid and discharged, (ii) the Borrower shall deliver an opinion of counsel to the effect that (A) the defeasance collateral has been duly and validly assigned and delivered to the Bondowner Representative for the benefit of the Bondowners and (B) the security interest of the Bondowner Representative for the benefit of the Bondowners is a first priority perfected security interest, and (iii) wdtten confirmation from the Rating Agency that the defeasance will not result in a downgrade, withdrawal or qualification of the rating then assigned to the Bonds; then and in that case this Indenture shall cease, terminate and become null and void, except only as provided in Sections 2.03, 2.05, 6.06, 8.06 and 10.02 hereof, and thereupon the Bondowner Representative shall, upon Wdtten Request of the Issuer, and upon receipt by the Bondowner Representative of a Certificate of the Issuer and an Opinion of Counsel, each stating that in the opinion of the signers all conditions precedent to the satisfaction and discharge of this Indenture have been complied with, forthwith execute proper instruments acknowledging satisfaction of and discharging this Indenture. The fees, expenses and charges of the Bondowner Representative (including reasonable counsel fees) must be paid in order to effect such discharge. The satisfaction and discharge of this Indenture shall be without prejudice to the rights of the Bondowner Representative to charge and be reimbursed by the Borrower for any expenditures which it may thereafter incur in connection herewith. The Issuer or the Borrower may at any time surrender to the Bondowner Representative for cancellation by it any Bonds previously authenticated and delivered which the Issuer or the Borrower lawfully may have acquired in any manner whatsoever, and such Bonds upon such surrender and cancellation shall be deemed to be paid and retired. Section 10.02. Discharge of Liability on Bonds. Upon the deposit with the aondowner Representative, in trust, at or before maturity, of money or securities in the necessary amount (as provided in Section 10.04) to pay or redeem outstanding Bonds (whether upon or prior to their maturity or the redemption date of such Bonds) provided that, if such Bonds are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as in Article IV provided or provision satisfactory to the Bondowner Representative shall have been made for the giving of such notice, and, in any event, notice thereof is given fo the Rating Agency, all liability of the Issuer in respect of such Bonds shall cease, terminate and be completely discharged, except only that thereafter the holders thereof shall be entitled to payment by the Issuer, and the Issuer shall remain liable for such payment, but only out of the money or securities deposited with the Bondowner Representative as aforesaid for their payment, .-. subject, however, to the provisions of Section 10.03. Section 10.03. Payment of Bonds after Discharge of Indenture. Notwithstanding any provisions of this Indenture, any moneys deposited with the Bondowner Representative or any paying agent in trust for the payment of the principal of, or interest or premium on, any Bonds remaining unclaimed for two (2) years after the principal of the outstanding Bonds has become due and payable (whether at maturity or upon call for redemption or by declaration as provided in this Indenture), shall then be paid to the Issuer, and the holders of such Bonds shall thereafter be entitled to look only to the Issuer for payment thereof, and only to the extent of the amount so paid to the Issuer, and all liability of the Bondowner Representative or any paying agent with respect to such moneys shall thereupon cease. In the event of the payment of any such moneys to the Issuer as aforesaid, the holders of the Bonds in respect of which such moneys were deposited shall thereafter be deemed to be unsecured creditors of the Issuer for amounts equivalent to the respective amounts deposited for the payment of such Bonds and so paid to the Issuer (without interest thereon). Section 10.04. Deposit of Money or Securities with Bondowner Representative. Whenever in this Indenture it is provided or permitted that there be deposited with or credited to the account of or held in trust by the Bondowner Representative money or securities in the'necassary amount to pay or redeem any Bonds, the money or securities so to be deposited or held shall be: (a) lawful money of the United States of America in an amount equal to the principal amount of such Bonds and all unpaid interest thereon to maturity, except that, in the case of Bonds which are to be redeemed prior to maturity and in respect of which there shall have been fumished to the Bondowner Representative proof satisfactory to it that notice of such redemption on a specified redemption data has been duly given or provision satisfactory to the Bondowner Representative shall be made for such notice, the amount so to be deposited or held shall be the principal amount of such Bonds and interest thereon to the redemption date, together with the redemption premium, if any; or (b) noncallable direct obligations of the United States of America or obligations which as to principal and interest constituta full faith and credit obligations of the United States of America, in such amounts and maturing at such times that the proceeds of said obligations received upon their respective maturities and intarest payment datas, without further reinvastment, will provide funds sufficient, in the opinion of Bond Counsel or a nationally recognized firm of certified public accountants, to pay the principal, premium, if any, and interest to maturity, or to the redemption date, as the case may be, with respect to all of the Bonds to be paid or redeemed, as such principal, premium and interest become due; provided that the Bondowner Representative shall have been irrevocably instructed by the Issuer to apply the proceeds of said obligations to the payment of said principal, premium, if any, and interest with respect to such Bonds. The Bondowner Representative shall have a valid first priority perfected security intarest in the moneys or securities and all proceeds thereof and distribution thereon and any such securities shall be held in the name of the Bondowner Representative for the benefit of the Bondowners. .... ARTICLE XI MISCELLANEOUS Section 11.01. Successors of Issuer. All the covenants, stipulations, promises and agreements in this Indenture contained, by or on behalf of the issuer, sha~l bind and inure to the benefit of its successors and assigns, whether so expressed or not. If any of the powers or duties of the Issuer shall hereafter be transferred by any law of the State of California, and if such transfer shall relate to any matter or thing permitted or required to be done under this Indenture by the Issuer, then the body or official who shall succeed to such powers or duties shall act and be obligated in the place and stead of the Issuer as in this Indenture provided. Section 11.02. Limitation of Rights to Parties and 'Bondholders. Nothing in this Indenture or in the Bonds expressed or implied is intended or shall be constnJed to give to any person other than the Issuer, the Bondowner Representative, the Borrower and the holders of the Bonds issued hereunder any legal or equitable right, remedy or claim under or in respect of this Indenture or any covenant, condition or provision therein or herein contained; and all such covenants, conditions and provisions are and shall be held to be for the sole and exclusive benefit of the Issuer, the Bondowner Representative, the Borrower and the holders of the Bonds issued hereunder. Section 11.03. Waiver of Notice. Whenever in this Indenture the giving of notice by mail or othenvise is required, the giving of such notice may be waived in writing by the person entitled to receive such notice and in any such case the giving or receipt of such notice shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. ._ Section 11.04. Destruction of Bonds. Whenever in this Indenture provision is made for the cancellation by the Bondowner Representative and the delivery to the Issuer of any Bonds, the Bondowner Representative shall, in lieu of such cancellation and delivery, destroy such Bonds and deliver a ceffJficate of such destruction to the Issuer. Section 11.05. Separability of Invalid Provisions. In case any one or more of the provisions contained in this Indenture or in the Bonds shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Indenture, but this Indenture shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein. Section 11.06. Noti~:es. It shall be sufficient service of any notice, request, demand or other paper on the Issuer, the Bondowner Representative, the Rating Agency or the Borrower if the same shall, except as otherwise provided herein, be duly mailed by first class mail, postage prepaid, or given by telephone or telecopier and confirmed by such mail, and to the other parties as follows: The Issuer:. City of Cupertino 10300 Torre Avenue Cupertino, California 95014 A~ntion: Director of Administrative Services Fax: (408) 777-3366 The Bondowner Representa~ve: Cupertino Na0onal Bank 20230 Stevens Creek Boulevard Cupertino, California 95014 · - Attention: Ms. Roxanne Vane, Sr. Vice President Fax: (408) 996-0657 The Borrower: Cupertino Community Services 10185 N. Stelling Road Cupertino, California 95014 Fax: (408) 255-4714 The Issuer, the Bondowner Representative and the Borrower may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certiticates or other communications shall be sent. Section 11.g7. Authorized Representatives. Whenever under the provisions of this Indenture the approval of the Issuer or the Borrower is required for any action, and whenever the Issuer or the Borrower is required to deliver any notice or other writing, such approval or such notice ot other writing shall be given, respectively, on behalf of the Issuer by the Authorized Issuer Representative or on behalf of the Borrower by the Authorized Borrower Representative, and the Issuer, the Bondowner Representative and the Borrower shall be authorized to act on any such approval or notice or other writing and neither party hereto nor the Borrower shall have any complaint against the others as a result of any such action taken. Section 11.08. Evidence of Rights of Bondholders. (a) Any request, consent or other instrument required by this Indenture to be signed and executed by Bondholders may be in any number of concurrent writings of substantially similar tenor and may be signed or executed by such Bondholders in person or by agent or agents duly appointed in wdting. Proof of the execution of any such request, consent or other instrument or of a writing appointing any such agent, or of the ownership of any Bonds, shall be sufficient for any purpose of this Indenture and shall be conclusive in favor of the Bondowner Representative and of the Issuer if made in the manner provided in this Section. (b) The fact and date of the execution by any person of any such request, consent or other instrument or writing may be proved by the affidavit of a witness of such execution or by the certificate of any notary public or other officer of any jurisdiction, authorized by the laws thereof to take acknowledgments of deeds, certifying that the person signing such request, consent or other instrument or writing acknowledged to him the execution thereof. (c) The ownership of Bonds shall be proved by the Bond register maintained pursuant to Section 2.06 hereof. The fact and the date of execution of any request, consent or other instrument and the amount and distinguishing numbers of Bonds held by the person so executing such request, consent or other instrument may also be proved in any other manner which the Bondowner Representative may deem sufficient. The Bondowner Representative may hevertheless, in its discretion, require further proof in cases where it may deem further proof desirable. (d) Any request, consent or vote of the holder of any Bond shall bind every future holder of the same Bond and the holder of any Bond issued in exchange therefor or in lieu thereof, in respect of anything done or suffered to be done by the Bondowner Representative or the Issuer in pursuance of such request, consent or vote. (e) In determining whether the holders of the requisite aggregate principal amount of Bonds have concurred in any demand, request, direction, consent or waiver under this Indenture, Bonds which are owned by the Issuer or by any other direct or indirect obligor on the Bonds, or by any person directly or indirectly controlling or controlled by, or under direct or indirect common control with, the Issuer or any other direct or indirect obligor on the Bonds, shall be disregarded and deemed not to be outstanding for the purpose of any such determination, provided that, for the purpose of determining whether the Bondowner Representative shall be protected in relying on any such demand, request, direction, consent or waiver, only Bonds which the Bondowner Representative knows to be so owned shall be disregarded. Bonds so owned which have been pledged in good faith may be regarded as outstanding for the purposes of this subsection (e) if the pledgee shall establish to the satisfaction of the Bondowner Representative and the Issuer the pledgee's right to vote such Bonds and that the pledgee is not a person directly or -31 - indirectly controlling or controlled by, or under direct or indirect common control with. the Issuer or any other direct or indirect obligor on the Bonds. In case of a dispute as to such right, any decision by the Bondowner Representative taken upon the advice of counsel shall be full prote~0~ to the Boh~lowner Representative. Solely for purposes of the limitation expressed in this paragraph (e), the Borrower shall be deemed to be an indirect obligor on the Bonds. (f) In lieu of obtaining any demand, request, direction, consent or waiver in writing, the Bondowner Representative may call and hold a meeting of the Bondholders upon such notice and in accordance with such rules and regulations as the Bondowner Representative considers fair and reasonable for the purpose of obtaining any such action. Section 11.09. Waiver of Personal Liability. No officer, agent, member or employee of the Issuer, and no officer, official, agent or employee of the State of California or any department, board or agency of any of the foregoing, shall be individually or personally liable for the payment of the principal of or premium or interest on the Bonds or be subject to any personal liability or accountability by reason of the issuance thereof; but nothing herein contained shall relieve any such person from the performance of any official duty provided by law or by this Indenture. Section t 1.10. Holidays. If the date for making any payment or the last date for performance of any act or the exemising of any right, as provided in this Indenture, is not a Business Day, such payment may be mede or act performed or right exemised on the next succeeding Business Day with the same force and effect as if done on the date provided therefor in this Indenture and, in the case of any payment, no interest shall accrue for the period from and after such date. Section 11.11. Execution in Several Counterparts. This Indenture may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original; and all such counterparts shall together constitute but one and the same instrument. Section 11.12. Governing Law. This Indenture shall be governed by and construed in accordance with the laws of the State of Califomia applicable to contracts made and performed in such State. Section 11.13. Conflict with Trust Indenture Act of 1939. If this Indenture is qualified under the Trust indenture Act of 1939, as amended (the '39 Act') and any provision of the 39 Act which is required to be included in this Indenture limits, qualifies or conflicts with another provision hereof which is required to be included in this Indenture such required provision shall control. Section 11.14. Successors. Whenever in this Indenture either the Issuer or the Bondowner Representative is named or referred to, such reference shall be deemed to include the successors or assigns thereof, and all the covenants and agreements in this Indenture contained by or on behalf of the Issuer or the Bondowner Representative shall bind and inure to the benefit of the respective successors and assigns thereof whether so expressed or not. Section tt,15. CUSIP Nurnbers. Neither the Bondowner Representative nor the Issuer shall be liable for any defect or inaccuracy in any CUSIP number that appears on any Bond or in any redemption notice. The Bondowner Representative may, in its discretion, include in any redemption notice a s~a~ement to the effect that any CUSIP number on the Bonds has been assigned by an independent service and are included in such notice solely for the convenience of the Bondholders and that neither the Issuer nor the Bondowner Representative shall be liable for any inaccuracies in such numbers. -32- 7-g5 IN WITNESS WHEREOF, the CITY OF CUPERTINO has caused this Indenture to be signed in its name and CUPERTINO NATIONAL BANK, in token of its acceptance of the trust created hereunder, has caused this Indenture to be signed in ils name, all as of the day and year first above written. ClTYOFCUPERTINO By: City Manager CUPERTINO NATIONAL BANK, as Bondowner Representative By: 03028.01:J5548 EXHIBIT A FORM OF BOND Up to :$1,600,000.00 CITY OF CUPERTINO MU/TIFAMILY HOUSING REVENUE BOND (HEART OF CUPERTINO PROJECT), SERIES 2001A REGISTERED OWNER: Cupertino National Bank PRINCIPAL SUM: Up to ONE MILLION SIX HUNDRED THOUSAND DOLLARS The City of Cu. pertino, a municipal corporation duly organized and existing under the laws of the State of Califomia (herein called the 'lssuer~), for value received, hereby promises to pay (but only out of Revenues as hereinafter provided) to the Registered Owner identified above or registered assigns, the sum of up to one million six hundred thousand dollars ($1,600,000.00) together with interest on the unpaid Outstanding Balance (as hereinafter defined) at the interest rate referred to below from October ,2001 until the Issuer's obligation to pay the .- Outstanding Balance shall be discharged. The Outstanding Balance shall mean the purchase price of the Bonds (defined below) which has been advanced by the purchaser thereof under the Indenture dascdbed below, and has not been rePaid by the Issuer as of the date of calculation of the Ou~s'~anding Balance. The principal Outstanding Balance of this Bond shall be due and payable on October 1, 2031. This Bond shall bear interest at the rate of six and three-eighths percent (6.375%) per annum, with monthly payments of principal and interest payable on the first business day of each month, commencing November 1, 2001, in the amount of $ In the event the Issuer fails to make the timely payment of any monthly payment, and such payment remains unpaid for a period of ten (10) days subsequent to the established payment date, the Issuer shall pay interest on the then Outstanding Balance at a default rate (the 'Default Rate") equal to the interest rate then in effect under this Bond plus five percent (5%) (solely from amounts received from the Borrower as late charges the Default Rate under the Loan Agreement (as defined in the Indenture)). This Bond is one of a duly authorized issue of bonds of the Issuer designated as "City of Cupertino Multifamily Housing Revenue Bonds (Heart of Cupertino Project), Sedas 2001A' (herein called the 'Bonds'), in the initial aggregate principal amount of up to $1,600,000, authorized to be issued pursuant to Chapter 8 of Part 5 of Division 31 of the Health and Safety Code of the State of Califomia (herein called the 'Act'), and issued under and secured by an Indenture of Trust, dated as of October 1, 2001 (herein called the 'Indenture"), between the Issuer and Cupertino National Bank, as Bondowner Representative (the 'Boodowner Representative'). Reference is hereby made to the Indenture and all indentures supplemental thereto for a description of the dghts thereunder of the owners of the Bonds, of the nature and extent of the security, of the dghts, duties and immunities of the Bondowner Representative and of the rights and obligations of the Issuer thereunder, to all of the provisions of which · - Indenture the holder of this Bond, by acceptance hereof, assents and agrees. A-1 7-q7 THE BONDS AND THE INTEREST THEREON ARE LIMITED OBLIGATIONS OF THE ISSUER PAYABLE EXCLUSIVELY FROM REVENUES AND RECEIPTS UNDER THE AGREEMENT. THE BONDS DO NOT CONSTITUTE A DEBT OF THE ISSUER, OR OF THE STATE OF CALIFORNIA, OR OF ANY POLITICAL SUBDIVISION THEREOF, WITHIN THE MEANING OF ANY STATE CONSTITUTIONAL PROVISION OR STATUTORY LIMITATION AND SHALL NEVER CONSTITUTE NOR GIVE RISE TO A PECUNIARY LIABILITY OF THE ISSUER, OR OF THE STATE OF CALIFORNIA OR ANY POLITICAL SUBDIVISION THEREOF. THE BONDS SHALL NOT CONSTITUTE A GENERAL OBLIGATION OF OR A CHARGE AGAINST THE GENERAL CREDIT OF THE ISSUER, BUT SHALL BE A SPECIAL, LIMITED OBLIGATION OF THE ISSUER PAYABLE SOLELY FROM THE SOURCES DESCRIBED IN THE INDENTURE, BUT NOT OTHERWISE. THE ISSUER HAS NO TAXING POWER. NO RECOURSE SHALL BE HAD FOR THE PAYMENT OF THE PRINCIPAL OF OR PREMIUM OR INTEREST ON THIS BOND AGAINST ANY PAST, PRESENT OR FUTURE OFFICER, DIRECTOR, MEMBER, EMPLOYEE OR AGENT OF THE ISSUER, OR OF ANY SUCCESSOR TO THE ISSUER, AS SUCH, EITHER DIRECTLY OR THROUGH THE ISSUER OR ANY SUCCESSOR TO THE ISSUER, UNDER ANY RULE OF LAW OR EQUITY, STATUTE OR CONSTITUTION OR BY THE ENFORCEMENT OF ANY ASSESSMENT OR PENALTY OR OTHERWISE, AND ALL SUCH LIABILITY OF ANY SUCH OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS, AS SUCH, IS HEREBY EXPRESSLY WAIVED AND RELEASED AS A CONDITION OF, AND CONSIDERATION FOR, THE EXECUTION AND ISSUANCE OF THIS BOND. The Bonds are limited obligations of the Issuer and, as and to the extent set forth in the Indenture, are payable solely from, and secured by a pledge of and lien on, the Revenues (as that term is defined in the Indenture), consisting primarily of amounts paid by Cupertino Community Services (the 'Borrower') pursuant to a Loan Agreement, dated as of October 1, 2001 (the 'Loan Agreement'), between the Issuer and the Borrower, to finance the acquisition and construction of a multifamily rental housing project owned by the Borrower in the City of Cupertino. The Bonds shall be subject to redemption prior to maturity, at a price equal to the principal amount of Bonds to be redeemed plus interest accrued thereon to the date fixed for redemption, without premium (a) in whole or in part on any date; (b) in whole following acceleration of the Loan upon the occurrence of an event of default under the Loan Agreement; and (c) in whole or in part on any date from the proceeds of any mandatory prepayment of the Loan under the terms of the Note or the Loan Agreement. No notice of redemption of Bonds need be given to the registered owners of the Bonds, and the owner of this Bond, by acceptance hereof, expressly waives any requirement for any notice of redemption. If an Event of Default, as defined in the Indenture, shall occur, the principal of all Bonds may be declared due and payable upon the conditions, in the manner and with the effect provided in the Indenture. The Indenture provides that in certain events such declaration and its consequences may be rescinded by the holders of at least a majority in aggregate principal amount of the Bonds then outstanding. The Bonds are issuable only as fully registered Bonds without coupons in a single instrument. . This Bond is transferable by the registered owner hereof, in parson, or by ils' attomey duly authorized in writing, at the Principal Office of the Bondowner Representative, but only in the manner, subject to the limitations (including the prior written consent of the Issuer to any such transfer) and upon payment of the charges provided in the Indenture, and upon surrender and cancellation of this Bond. Upon such transfer a new fully registered Bond will be issued to the transferee in exchange herefor. The Issuer and the Bondowner Representative may treat the registered owner hereof as the absolute owner hereof for all purposes, and the Issuer and the Bondowner Representative shall not be affected by any notice to the con~mry. A-2 7- /8 The Indenture contains provisions permitting the Issuer and the Bondowner Representative to execute supplemental indentures adding provisions to, or changiflg or'eliminating any of the provisions of, the Indenture, subject to the limitations set forth in the Indenture. The Issuer hereby certifies that all of the conditions, things and acts required to exist, to have happened and to have been performed precedent to and in the issuance of this Bond do exist, have happened and have been performed in due time, form and manner as required by the Constitution and statutes of the State of Califomia (including the Act) and that the amount of this Bond, together with all other indebtedness of the Issuer, does not exceed any limit prescribed by We Constitution or statutes of the State of California. This Bond shall not be entitled to any benefit under the Indenture, or become valid or obligatory for any purpose, until the certificate of authentication hereon endorsed shall have been manually signed by the Bondowner Representative. A-3 7-qq IN WITNESS WHEREOF, the CITY OF CUPERTINO has caused this Bond to be executed in its name by the manual or facsimile signature of its Mayor and its official seal to be impressed or printed hereon and attested by the manual or facsimile signature of its City Clerk, all as of October_, 2001. CITY OF CUPERTINO By Mayor Attest: By City Clerk FORM OF CERTIFICATE OF AUTHENTICATION This is one of the Bonds described in the within-mentioned Indenture and has been authenticated and registered on this date: CUPERTINO NATIONAL BANK, as Bondowner Representative By Authorized Officer A-4 --- FORM OF ASSIGNMENT For value received, the undersigned do(es) hereby sell, assign and transfer unto (Name, Address and Tax Identification or Social Security Number of Assignee) the within Bond and do(es) hereby irrevocably constitute and appoint ,attomey, to transfer the same on the registration books of the aondowner Representative, with full power of substitution in the premises. Dated: . ~ ' Signature Guaranteed: NOTICE: Signature(s) must be guaranteed by a eligibleNOTICE: The signature on this assignment must correslx)nd guarantor, with the name(s) as written on the face of lhe within Bond in eveq pa~cular without alteration or eala1~ment or any change whatsoever. A-5 7-51 Quint & Thimmig LLP 8/27/01 9/10/01 LOAN AGREEMENT by and between the CITY OF CUPERTINO and CUPERTINO COMMUNITY SERVICES Dated as of October 1, 2001 relating .to: City of Cupertino Multifamily Housing Revenue Bonds (Heart of Cupertino Project), Series 2001A 03028.01~,549 · - TABLE OF CONTENTS ARTICLE I DEFINITIONS AND INTERPRETATION Section 1.1. DelinilJons .......................................................................................................................................................... 1 Section 1.2. Interpretation ..................................................................................................................................................... 4 Section 1.3. Redtals, Titles and Headings ............................................................................................................................ 4 ARTICLE II REPRESENTATIONS AND WARRANTIES Section 2.1. Representations and Warranties of the Issuer ........... ~ ...................................................................................... 5 Section 2.2. Representations, Warranties and Covenants of the Sorrower .......................................................................... 5 Section 2.3. Hazardous Waste Covenant ............................................................................................................................. 9 Section 2.4. Additional Envimnmantal Matters .................................................................................................................... 10 ARTICLE III THE LOAN Section 3.1. Closing of the Loan ......................................................................................................................................... 13 Section 3.2. Commitment to Execute the Note ................................................................................................................... 13 Section 3.3. Amount and Source of Loan ............................................................................................................................ 13 Section 3.4. Disbursement of Loan Proceeds ..................................................................................................................... 13 ARTICLE IV LIMITED LIABILITY Section 4.1. Limited Liability ................................................................................................................................................ 14 ARTICLE V REPAYMENT OF THE LOAN Section 5.1. Loan Repayment. ............................................................................................................................................ 15 Section 5.2. Nature of the Sorrower's Obligations .............................................................................................................. 15 Section 5.3. No Encumbrances ........................................................................................................................................... 16 ARTICLE VI FURTHER AGREEMENTS Section 6.1, Successor to the Issuer ................................................................................................................................... 17 Section 6.2. Borrower Not to Dispose of Assets; Conditions Under Which Exceptions Permitted ...................................... 17 Section 6.3. Cooperation in Enforcement of Regulatory Agreement. .................................................................................. 17 Section 6.4. Additional Instruments ..................................................................................................................................... 17 Section 6.5. Books and Records ......................................................................................................................................... 17 Section 6.6. Nolice of Certain Events .................................................................................................................................. 17 Section 6.7. Indemnification of the Issuer and Sondowner Representative ........................................................................ 18 Section 6.8. Consent to Assignment ................................................................................................................................... 18 Section 6.9. Compliance with Usury Laws .......................................................................................................................... 18 Section 6.10. Title to the Development. ................................................................................................................................ 18 Section 6.11. Payment of Taxes ........................................................................................................................................... 19 Section 6.12. No Untrue Statements ..................................................................................................................................... 19 Se~on 6.13, insurance ........................................................................................................................................................ 19 Section 6.14. Tax Exempt Status of the Sonds ..................................................................................................................... 19 Section 6.15. Regulatory Agreement. ................................................................................................................................... 20 Section 6.16. Useful Life ....................................................................................................................................................... 20 Section 6.17. Federal Guarantee Prohibition ........................................................................................................................ 21 Section 6.18. Prohibited Facilities ......................................................................................................................................... 21 Section 6.19. Completion of Improvements by Bondowner Representative ......................................................................... 21 ARTICLE VII EVENTS OF DEFAULT AND REMEDIES Section 7.1. Events of Default ............................................................................................................................................. 22 Section 7.2. Notice of Default; Opportunity to Cure ..................................................................... : ...................................... 23 Section 7,3. Remedies ........................................................................................................................................................ 23 Section 7.4. Attorneys' Fees and Expenses ........................................................................................................................ 23 Section 7.5. No Remedy Exclusive ............................................... :: .................................................................................... 23 Section 7.6. No Additional Waiver Implied by One Waiver ................................................................................................. 24 ARTICLE VIII MISCELLANEOUS Section 8.1. Entire Agreement .............................................................................. ~ ............................................................. 25 Section 8.2. Notices ............................................................................................................................................................ 25 Section 8.3. Assignments .................................................................................................................................................... 25 Section 8.4. Severability ...................................................................................................................................................... 25 Section 8.5. Execution of Counterparts ............................................................................................................................... 25 Section 8.6. Amendments, Cha~ges and Modifications ...................................................................................................... 25 Section 8.7. Governing Law ................................................................................................................................................ 25 Section 8.8. Term of Agreement. ........................................................................................................................................ 25 Section 8.9. Survival of Agreement ..................................................................................................................................... 25 Sec~on 8.10. Binding Effect; Third Party Beneficiary ............ .. ............................................................................................... 25 EXHIBIT A INCOME COMPUTATION AND CERTIFICATION EXHIBIT B CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE EXHIBIT C NOTE EXHIBIT D CONDITIONS TO DISBURSEMENT - LOAN AGREEMENT THIS LOAN AGREEMENT dated as of October 1, 2001 (the "Loan Agreement") is by and between the City of Cupertino, a municipal corporation duly organized and existing pursuant to the laws of the State of California (together with any successor to its fights, dubes and obligations, the "Issuer'), and Cupertino Community Services, a California nonprofit public benefit corporation (the "Borrower'). For and. in consideration of the mutual agreements hereinafter contained, the parties hereto agree as follows: ARTICLE DEFINITIONS AND INTERPRETATION Section 1.1. Definitions. The following words and terms as used in this Agreement shall have the following meanings unless the context or use othenvise requires: "Act" means Chapter 8 of Part 5 of Division 31 (commencing with Section 52100) of the Health and Safety Code of the State of California as now in effect and as it may from time fo time hereafter be amended or supplemented. 'Act of Bankruptcy" means the filing of a petition in bankruptcy (or other commencement of a bankruptcy or similar proceeding) by or against the Borrower, or any guarantor of the Borrower, under any applicable bankruptcy, insolvency or similar law now or hereafter in effect. "Adjusted Income" has the meaning ascribed to such term in the Regulatop/Agreement. "Affiliated Party' has the meaning ascdbed to such term in the Regulatory Agreement. "Amhitecture Contract" mean the amhitect's contract dated ,2001 between the Borrower and for the Development. "Area" has the meaning ascdbed to such term in the Regulatory Agreement. 'Bonds" means the City of Cupertino Multifamily Housing Revenue Bonds (Heart of Cupertino Project), Sedas 2001A, issued and outstanding under the Indenture. 'Bondowner Representative" means Cupertino National Bank, in its capacity as the Bondowner Representative under the Indenture. 'Bonower' means Cupertino Community Services, a Califomia nonprofit public benefit corporation, and ils successors and assigns. 'Borrower Representative' means the person or persons at the time duly designated by the Borrower to act on behalf of the Borrower by written certificate furnished to the Issuer, containing the specimen signatures of such person or persons and signed by the President of the General Partner of the Borrower. Such cerlJficate may designate an altemate or altemates. -1- 7-55' "Business Day" means any day other than a Saturday, a Sunday, or a day on which the Bondowner Representative is closed. ~Certificate of Continuing Program Compliance" means the document in the form attached hereto as Exhibit B. "Code" means the Internal Revenue Code of 1986 as in effect on the data of issuance of the Bonds and (except as otherwise referenced herein) as it may be amended, together with applicable temporary and final regulations promulgated, and applicable official public guidance published, under the Code. "Collateral" means all property and assets granted as collateral secu~/for a loan, whether real or personal property, whether granted directly or indirectly, whether granted now or in the future, and whether granted in the form of a security interest, mortgage, collateral mortgage, deed of trust, assignment, pledge, crop pledge, chattel mortgage, collateral chattel mortgage, chattel trust, factor's lien, equipment trust, conditional sale, trust receipt, lien, charge, lien or title retention contract, lease or consignment intended as a security device, or any other security or lien interest whatsoever, whether created by law, contract, or otherwise. "Construction Contract" mean the contract dated . 2001 between the Borrower and , the general contractor for the Development (the 'General Contractor"), and any subcontracts with subcontractors, meterialmen, laborers, or any other person or entity for performance of work on the Development or the delivery of materials to the Development. "County" means the County of Santa Clara, California. 'Deed of Trust" means the Deed of Trust, Assignment of Rents and Leases, Security Agreement and Fixture Filing executed by the Borrower and granting a security interest in the Development to the beneficiary thereunder for the benefit of the Issuer to secure the Borrowers obligations under the Note. 'Development" means the residential rental facility to consist of 24 units of multifamily rental housing to be located at 10114 and 10214 Vista Drive in the City of Cupertino, California, to be owned and operated by the Borrower on the site described in the Deed of Trust and Exhibit A to the Regulatory Agreement. "Development Costs" means, to the extent authorized by the Act, the Code and the Regulations, any and all costs and expenses incurred by the Borrower with respect to the acquisition, financing, construction and/or operation of the Development, whether paid or incurred prior to or alter the Closing Date, including, without limitation, costs for the acquisition of property, the cost of consultant, accounting and legal services, appraisal costs, other expenses necessary or incident to determining the feasibility of the Development, and administrative expenses, and interest on the Loan. "Development Documents" mean the Plans and Specifications, all studies, data and drawings relating to the Development, whether prepared by or for the Borrower, the Construction Contract, the Amhitecture Contract, and all other contracts and agreements relating to the Development or the construction of the improvements. "Event of Default" means any of the events described as an event of default in Section 7.1 hereof. "Fire District Deed of Trust' means the Deed of Trust, Assignment of Rents and Lease Security Agreement and Fixture Filing executed by the Santa Clara county Fire District granting a security interest in its fee interest in the Development to the Issuer. · -- 'Improvements" means all existing and future buildings, structures, facilities, fixtures, additions, and similar construction with respect to the Development. 'indenture" means the Indenture of Trust, dated as of ~)ctober 1, 2001, between the Issuer and the Bondowner Representative, as executed by the parties thereto and as thereafter amended in accordance with its terms. 'Inducement Date' means October 1, 2001. "issuer" means the City of Cupertino, Califomia, or its successors and assigns. "Loan" means the mortgage loan originated hereunder by the Issuer to the Borrower in an amount up to one million six hundred thousand dollars ($1,600,000) for the purpose of financing the Development. "Loan Agreement' means this Loan Agreement, as amended and supplemented from time to time. "Loan Documents' means this Loan Agreement, the Indenture, the Regulatory Agreement, the Note, the Bonds, the Assignment Agreement, the Fire District Deed of Trust and the Deed of Trust. "Low Income Tenants" has the meaning ascribed to such term in the Regulatory Agreement. "Low income Units' has the meaning ascribed to such term in the Regulatory Agreement. "Median Income for the Area' has the meaning ascribed to such term in the Regulatory Agreement. 'Note" means the promissory note evidencing the Loan, executed by the Borrower and in the form attached hereto as Exhibit C. "Plans and Specifications" mean the plans and specifications for the Development which have been submitted to and initialed by Bondowner Representative, together with such changes and additions as may be approved by Bondowner Representative in writing. "Qualified Development Costs" means costs of the Development paid or incurred following the date which is 60 days prior to the Inducement Date; provided that if any portion of the Development is being cons~cted by an "affiliated party (whether as a general contractor or a subcontractor), 'Qualified Development Costs' shall include only (a) the actual out-of-pocket costs incurred by such affiliated party in constructing the Development (or any portion thereof), (b) any reasonable fees for supervisory services actually rendered by the affiliated party, and (c) any overhead expenses incurred by the affiliated party that are directly atlfibutable to the work performed on the Development, and shall not include, for example, intemompany profits resulting from members of an affiliated group (within the meaning of Section 1504 of the Code) participating in the construction of the Development or payments received by such affliated party due to early completion of the Development (or any portion thereof). "Qualified Development Peded" has the meaning ascribed to such term in the Regulatory Agreement. 'Regulations' means the income tax regulations promulgated by the United States Deperlment of the Treasury from time to time pursuant to the Code. ._ "Regulatory Agreement" means the Regulatory Agreement and Declaration of Restrictive Covenants dated as of October 1,2001, executed by the Issuer and the Borrower. 7-57 "State" means the State of California. "Very Low Income Tenants" has the meaning ascribed to such term in the Regulatory Agreement. "Very Low Income Units" has the meaning ascribed to such term in the Regulatory Agreement. Section 1.2. Intamretation. Unless the context clearly requires othe~se, words of masculine gender shall be construed to include correlative words of the feminine and neuter genders and vice versa, and words of the singular number shall be construed to include correlative words of the plural number and vice versa. This Loan Agreement and all the terms and provisions hereof shall be construed to effectuate the purpose set forth herein and to sustain the validity hereof. Section 1.3. Recitals, Titles and Headinas. The terms and phrases used in the recitals of this Loan Agreement have been included for convenience of reference only, and the meaning, construction and interpretation of all such terms and phrases for purposes of this Loan Agreement shall be determined by references to Section 1.1 hereof. The titles and headings of the articles and sections of this Loan Agreement have been inserted for convenience of reference only and are not to be considered a part hereof, and shall not in any way modify or restrict any of the terms or provisions hereof and shall never be considered or given any effect in construing this Loan Agreement or any provision hereof or in ascertaining intent, if any question of intent should arise. -- ARTICLE II REPRESENTATIONS AND WARRANTIES Section 2.1. Renresentations and Warranties of the Issuer. The Iss .uer represents, warrants and covenants that: (a) The Issuer is a municipal corporation duly organized and existing under the Constitution and laws of the State. (b) The Issuer has full legal dght, power and authority under the laws of the State and has taken all official actions necessary (i) to enter into this Loan Agreement, and the Indenture and the Regulatory Agreement; (ii) to perform its obligations hereunder and thereunder, and (iii) to consummate all other transactions on its part contemplated by this Loan Agreement, the Indenture and the Regulatory Agreement. (c) This Loan Agreement, the Indenture and the Regulatory Agreement have been duly executed and delivered by the Issuer and constitute valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their respective terms, except as limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the rights of creditors generally. (d) The execution and delivery of this Loan Agreement and the Indenture and the Regulatory Agreement, the performance by the Issuer of its obligations hereunder and thereunder and the consummation of the transactions on' its part contemplated hereby and thereby, including, without limitation, the loaning of the amounts herein set forth to the Borrower, do not violate any law, rule, regulation or ordinance or any order, judgment or decree of any federal, state or local court, and do not conflict with, or constitute a breach of, or a default under the terms and conditions of any agreement, instrument or commitment to which the Issuer is a party or by which the Issuer or any of its property is bound. (e) There is no action, suit, proceeding, inquiry or investigation served upon the Issuer or, to the knowledge of the Issuer, threatened against the Issuer by or before any court, govemmental agency or public board or body which (i) affects or questions the existence or the territorial jurisdiction of the Issuer or the title to office of any members of the governing body of the Issuer; (ii) affects or seeks to prohibit, restrain or enjoin the execution and delivery of this Loan Agreement, the Regulatory Agreement, the Indenture or the loaning of the amounts herein set forth to the Bonower, (iii) affects or questions the validity or enforceability of this Loan Agreement, the Indenture or the Regulatory Agreement; or (iv) questions the power or authority of the Issuer to carry out the transactions on its part contemplated by this Loan Agreement, the Indenture or the Regulatory Agreement. Section 2.2. Reoresentations, Warranties and Covenants of the Borrower. The Borrower represents, warrants and covenants that: (a) The Borrower is a California nonprofit public benefit corporation, organized and existing under the laws of the State, is in good standing in the State, is a corporation described in Section 501(c)(3) of the Code and has full legal fight, power and authonty under the laws of the United States of America and the State (i) to enter into this Loan Agreement and the other Loan Documents to which it is a party; (ii) to perform ils obligations hereunder and thereunder, and (iii) to consummate the transactions on its part contemplated by the Loan Documents. (b) The Loan Documents to which it is a party have been duly executed and delivered by the Borrower and constitute valid and binding obligations of the Bonower, enfomeable in accordance with their respective terms, except as limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws or judicial decisions affecting the dghts of creditors generally, Upon the execution and delivery thereof, each of the Loan Documents to which it is a party will constitute valid and binding obligations of the Borrower, enforceable in accordance with their respective terms, except as limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws or judicial decisions affecting creditors' rights generally and by judicial discretion in the exercise of equitable remedies, (c) The execution and delivery of the Loan Documents to which it is a party, the performance by the Borrower of its obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby will not violate the Borrower's organizational documents, or any law, regulation, rule or ordinance or any order, judgment or decree of any federal, state or local court and do not conflict with, or constitute a breach of, or a default under, any document, instrument or commitment to which the Borrower is a pa~y or by which the Borrower or any of its property is bound. (d) There is no action, suit, proceeding, inquiry or investigation by or before any court, governmental agency or public board or body pending or threatened against the Borrower which (i) affects or seeks to prohibit, restrain or enjoin the loaning of the amounts set forth herein fo the Borrower or the execution and delivery of this Loan Agreement or the other Loan Documents, (ii) affects or questions the validity or enforceability of this Loan Agreement or the other Loan Documents, (iii) questions the power or authority of the Borrower to carry out the transactions contemplated by, or fo perform its obligations under, this Loan Agreement or the other Loan Documents to which it is a party, or the powers of the Borrower to own, acquire, construct, equip or operate the Development. (e) The Borrower is not in default under any document, instrument or commitment fo which the Borrower is a party or to which it or any of its property is subject which default would or could affect the ability of the Borrower to can7 out its obligations under this Loan Agreement or the other Loan Documents. (f) Any certificate signed by a Borrower Representative and delivered pursuant to this Loan Agreement or the other Loan Documents shall be deemed a representation and warranty by the Borrower as to the statements made therein. (g) The Development is located wholly within the City of Cupertino, California. (h) The Borrower will obtain all necessary certificates, approvals, permits and authorizations with respect to the acquisition and construction of the Development from applicable Iooal governmental agencies and agencies of the State of California and the federal government. (i) The Borrower shall make no changes to the Development or to the operation thereof which would affect the qualification of the Development under the Act or impair the exclusion from gross income for federal income tax purposes of the interest on the Bonds. The Borrower intends to utilize the Development as multifamily rental housing during the Qualified Development Period. (j) Not in excess of two percent (2%) of the proceeds of the Note will be used to pay costs of issuance of the Note and/or the Bonds. (k) The acquisition, construction and operation of the Development in the manner presently contemplated and as described herein and in the Regulatory Agreement will not conflict with any zoning, water or air pollution or other ordinance, order, law or regulation applicable thereto. The Borrower will cause the Development to be operated in all material respects in accordance with all applicable federal, state and local laws or ordinances (including rules and regulations) relating to zoning, building, safety and environmental quality. (I) The Borrower acknowledges, represents and warrants that it understands the nature and structure of the Development; that it is familiar with the provisions of all of the documents and instruments relating to the financing of the Development to which it or the Issuer is a party or of which it is a beneficiary; that it understands the dsks inherent in such transactions, including without limitation the dsk of loss of the Development; and that it has not relied on the Issuer for any guidance or expertise in analyzing the financial or other consequences of such financing transactions or otherwise relied on the issuer in any manner except to issue the Bonds in order to provide funds for the Loan. (m) The Borrower intends to hold the Development for its own account, has no current plans to sell and has not entered into any agreement to sell the Development. (n) The Borrower has contacted all 'related persons" thereof (within the meaning of Section 147(a) of the Code); and none of them shall, at any time, pursuant to any arrangement, formal or informal, acquire any interest in the Bonds. (o) In the event the Loan proceeds and the other sources of funds for the Development identified by the Borrower on the Closing Date are not sufficient to complete the acquisition and construction of the Project and the payment of all costs of issuing the Bonds, the Borrower will (i) notify the Issuer in writing of the amount of the shortfall, and (ii) fumish any additional moneys necessary to complete the acquisition and construction of the Development. (p) All of the proceeds from the Loan plus the income from the investment of the proceeds of the Loan will be used to pay or reimburse the Borrower for Development Costs, and at least 97% of the proceeds of the Loan will be used to pay or reimburse the Borrower for Qualif~=d Development Costs. The Borrower shall assure that the proceeds of the Loan are expended so as to cause the Bonds to satisfy the applicable requirements of Section 145 of the Code. (q) The estimated total cost of the financing of the acquisition and construction of the Development is equal to or in excess of the principal amount of the Loan. (r) The Borrower has not knowingly taken or permitted to be taken and will not knowingly fake or permit to be taken any action which would have the effect, direly or indirectly, of causing interest on any of the Bonds to be included in the gross income of the owners thereof for purposes of federal income taxation. (s) The Borrower covenants that it shall not take, or cause or direct the Bondowner Representative to take, any action with respect to the proceeds of the Bonds which if such action had been reasonably expected to have been taken, or had been deliberately and intentionally taken, on the date of issuance of the Bonds would have caused the Bonds to be 'arbitrage bonds" within the meaning of Section 148(a) of the Code. (t) All property financed with the proceeds of the Loan will be owned (as ownership is determined for purposes of federal income taxation) by the Borrower, or by an organization described in section 501(c)(3) of the Code in furtherance of the exempt purpose of such organization, or by a govemmental unit, and any disposition of such property shall be subject to the requirements of Section 6.2 hereof. (u) The Borrower covenants to maintain its status as an organization described in Section 501(c)(3) of the Code and its exemption from federal income taxation under Section 501(a) of the Code. (v) The Borrower is aware of the provisions of Section 150(b)(3) of the Code and covenants that any use of the property financed with the proceeds of the Loan by other than an organization described in Section 501(c)(3) of the Code or a govemmental unit (as described in Section 145 of the Code) will not be such as to cause the Borrower to violate the covenants contained in paragraphs (t) and (u) above. (w) The Borrower has the full power and authority to own its properties and to transact the business in which it is presently engaged or presently proposes to engage. The Borrower maintains an office at 10185 N. Stelling Road, Cupertino, CA 95014. Unless the Borrower has designated otherwise in writing, the principal office is the office at which the Borrower keeps ils books and records including its records concerning the Collateral. The Borrower will notify Bondowner Representative pdor to any change in the location of the Borrower's state of organization or any change in the Borrower's name. The Borrower shall do all things necessary to prasen~e and to keep in full force and effect its existence, rights and privileges, and shall comply with all regulations, rules, ordinances, statutes, orders and decrees of any govemmental or quasi-govemmental authority or court applicable to the Borrower and the Borrower's business activities. (x) The Borrower has filed or recorded all documents or filings required by law relating to all assumed business names used by the Borrower. Excluding the name of the Borrower, the following is a complete list of all assumed business names under which the Borrower does business: None. (y) Each of the Borrower's financial statements supplied to Bondowner Representative truly and completely disclosed the Borrower's financial condition as of the date of the statement, and there has been no material adverse change in the Borrower's financial condition subsequent to the date of the most recent financial statement supplied to Bondowner Representative. The Borrower has no material contingent obligations except as disclosed in such financial statements. (z) Except as contemplated by this Agreement or es previously disclosed in the Borrower's financial statements or in writing to Bondowner Representative and as accepted by Bondowner Representative, and except for property tax liens for taxes not presently due and payable, the Borrower owns and had good title to all of the Bormwar's properties free and clear of all security interests, and has not executed any security documents or financing statements relating to such properties. NI of the Borrower's properties are titled in Borrower's legal name, and the Bon~wer has not used, or filed a financing statement under, any other name for at least the last five (5) years. (aa) The Ground Lease is in full force and effect and there are no events of defaults or no events have occurred that would become events of default with the passage of time or giving of notice or both under the Ground Lease. (bb) No litigation, claim, investigation, administrative proceeding or similar action (including those for unpaid taxes) against the Bonowar is pending or threatened, and no other event has occurred which may materially adversely affect the Borrower's financial condition or propedJes, other than litigation, claims, or other events, if any, that have been disclosed to and acknowledged by Bondowner Representative in writing. (cc) To the best of the Borrowar's knowledge, all of the Borrower's tax returns and reports that are or ware required to be filed, have been filed, and all taxes, assessments and other governmental charges have been paid in full, except those presently being or to be contested by the Bom)war in good faith in the ordinary course of business and for which adequate reserves have been provided. (dd) Unless otherwise previously disclosed to Bondowner Representative in wdting, the Borrower has not entered into or granted any security agreements, or permitted the filing or attachment of any security interests on or affecting any of the Collateral directly or indirecliy secudng repayment of the Loan and Note, that would be pdor or that may in any way be superior to Issuer's secudty interests and rights in and to such Collateral. (ee) The Borrower has, or on the date of first disbursement of Loan proceeds will have, good and marketable title to the Collateral free and clear of all detects, liens, and encumbrances, excepting only liens for taxes, assessments, or governmental charges or levies not'yet delinquent or payable without penalty or interest, and such liens and encumbrances as may be approved in writing by the Bondowner Representative. The Development is contiguous to publicly dedicated streets, roads, or highways providing access to the Development. (~ All utility services appropriate to the use of the Development after completion of construction are available at the boundaries of the Development. (gg) The Development is and will continue to be assessed and taxed as an independent parcel by all governmental authorities. (hh) The Borrower has examined and is familiar with all the easements, covenants, conditions, restrictions, reservations, building laws, regulations, zoning ordinances, and federal, state, and local '-- requirements affecting the Development. The Development will at all times and in all.respects conform to and comply with the requirements of such easements, covenants, conditions, restrictJons, reservations, building laws, regulations, zoning ordinances, and federal, state, and local requirements. Section 2.3. Hazardous Waste Covenant. In addition to and without limitation of any other representations, warranties and covenants made by the Borrower under this Loan Agreement and under the Regulatory Agreement and the Deed of Trust, the Borrower further represents, warrants and covenants that (a) the Bom)war will not use Hazardous Materials (as defined hereinafter) on, from, or affecting the Development (i) in any manner which violates federal, state or local laws, ordinances, roles, or regulations govaming the use, storage, treatment, ti'ansportation, manufacture, refinement, handling, produc~on or disposal of Hazardous Materials, or (ii) in a manner that would create a material adverse effect on the Development, and that, (b) to the best of the Borrower's knowledge no prior owner of the Development or any tenant, subtenant, prior tenant or prior subtenant has used Hazardous Materials on, from, or affecting the Development (i) in any manner which violates Federal, state or local laws, ordinances, rules, or regulations govaming the use, storage, treatment, transportation, manufacture, refinement, handling, production or disposal of Hazardous Materials, or (ii) in a manner that would create a material adverse effect on the Development. Without limiting the foregoing, the Bormwar shall not cause or permit the Development or any part thereof to be used to generate, manufacture, refine, transport, treat, store, handle, dispose, tmnsfor, produce or process Hazardous Materials, except in compliance with all applicable Federal, state and local laws or regulations, nor shall the Borrower cause or knowingly permit, as a result of any intentional or unintentional act or omission on the part of the Borrower or any tenant or subtenant, a release of Hazardous Materials on to the Development or on to any other property in a manner which violates Federal, State, or local laws, ordinances, rules or regulations or in a manner that would create a material adverse effect on the Development. The Bom)wer shall comply with and require compliance by all tenants and subtenants with all applicable Federal, state and local laws, ordinances, rules .._ and regulations, and shall obtain and comply with, and require that all tenants and subtenants obtain and comply with, any and all approvals, regis~al;ons or permits required thereunder. The Borrower shall conduct and complete all investigations, studies, sampling, and testing, and all remedial, removal, and other action required by a governmental authority under an applicable statute or regulation to clean up and remove all Hazardous Materials, on, from, or affecting the Development in accordance with all applicable Federal, state, and local laws, ordinances, rules, and regulations. The Borrower shall defend, indemnify, and hold harmless the issuer from and against any claims, demands, penalties, fines, liabilities, settlements, damages, costs, or expenses of whatever kind or nature, known or unknown, contingent or otherwise, arising out of, or in any way related to, (a) the presence, disposal, release, or threatened release of any Hazardous Materials which are on or from the Development which affect, the soil, water, vegetation, buildings, pemonal property, persons, animals, or otherwise; (b) any pemonal injury (including wrongful death) or property damage (real or pemonal) arising out of or related to such Hazardous Materials on or from the Development, and/or (c) any violation of laws, orders, regulations, requirements or demands of government authorities, or written requirements of the issuer, which are based upon or in any way related to such Hazardous Materials including, without limitation, attorney and consultant fees, investigation and laboratory fees, court costs, and litigation expenses, except only those direc'dy arising from the gross negligence or willful misconduct of the Issuer. In the event the Development is foreclosed upon, or a deed in lieu of foreclosure is tendered, or this Loan Agreement is terminated, the Borrower shall deliver the Development in a manner and condition that shall conform with all applicable Federal, state and local laws, ordinances, rules or regulations affecting the Development related to Hazardous Materials. For the purposes of this paragraph, 'Hazardous Materials" includes, without limit, any flammable explosives, radioactive materials, hazardous materials, hazardous wastes, hazardous or toxic substances, or related materials defined in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Sections 9601, et seq.), the Hazardous Materials Transportation Act, as amended (49 U.S.C. Sections 1801 et seq.), the Resource Conservation and Recovery Act, as amended (42 U.S.C. Sections 9601 et seq.), and in the regulations promulgated pursuant thereto, or any.other federal, state or local environmental laws, ordinance, rule, or regulation. The provisions of this paragraph: (a) shall be in addition to any and all other obligations and liabilities the Borrower may have to the Issuer at common law, and (b) with respect to any liability or cost arising as a result of acts or omissions of the Borrower during the term of this Loan Agreement, shall survive the termination of this Loan Agreement. This paragraph shall not obligate the Borrower in any way with respect to any acts or omissions of any entity to which the Development is sold or transferred in accordance with the provisions of Section 10 of the Regulatory Agreement or which are attributable directly to the acts or omissions of the Issuer or the Bondowner Representative or their agents or assigns. The indemnifications and protections set forth in this Section 2.3 (i) shall be extended, with respect to the Issuer, to its members, directors, officers, employees, agents and servants and parsons under the Issuer's control or supervision, and (ii) shall be for the full and equal benefit of the Bondowner Representative, as assignee of the Issuer under the Assignment Agreement. Anything to the contrary in this Loan Agreement notwithstanding, the covenants of the Borrower contained in this Section 2.3 shall remain in full force and effect after the termination of this Loan Agreement until the later of (i) the expiration of the period stated in the applicable statute of limitations during which a claim or cause of action may be brought and (ii) payment in full or the satisfaction of such claim or cause of a~on and of all expanse and charges incurred by the Issuer relating to the enforcement of the provisions herein specified. For the purposes of this Section 2.3, the Bormwar shall not be deemed an employee, agent or servant of the Issuer or person under Issuer's control or supervision. Section 2.4. Additional Environmental Matters. (a) The Borrower shall require in any management agreement for the Development that the management company shall operate and maintain the Development in material compliance with all applicable federal, state, regional, county or local laws, statutes, rules, regulations or ordinances, conceming the environment, including, but not limited to, the Comprehensive Environmental Response, Compensation and Uability Act of 1980, as amended by the Superfuod Amendments and Reauthorization Act of 1986, 42 U.S.C. Section 9601 et seq., the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended by the H~7~rdous and Solid Waste Amendments of 1984, 42 U.S.C. Section -- 6901 et seq., the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq., and the Clean Air Act of 1975, 42 U.S.C. Section 4321, and all rules, regulations and guidance documents promulgated or published thereunder, and any state, ragioneJ, .county or local statute, law, rule, regulation or ordinance relating (i) to releases, discharges, emissions or disposal to air, water, land or ground water, (ii) to the withdrawal or use of ground water, (iii) to the use, handling or disposal or polychlodnated biphenyls ('PCBs"), asbestos or urea formaldehyde, (iv) to the treatment, storage, disposal or management of hazardous substances (including, without limitation, petroleum, its derivatives, crude oil or any fraction thereof) and any other solid, liquid or gaseous substance, exposure to which is prohibited, limited or regulated, or may or could pose a hazard to the health and safety of the occupants of the Development or the property adjacent to or sunounding the Development, (v) to the exposure of persons to toxic, hazardous or other controlled, prohibited or regulated substances or (vi) to the transportation, storage, disposal, management or release of gaseous or liquid substances and any regulation, order, injunction, judgment, declaration, notice or demand issued-thereunder. (b) The Borrower shall make best efforts to prevent the imposition of any liens or encumbrances against the Development for the costs of any response, removal Or remedial action or cleanup of Hazardous Materials. (c) The Borrower covenants and agrees that it will not knowingly conduct or allow to be conducted any business, operations or activity on the Development, or employ or use the Development to manufacture, treat, store (except with respect to storage in the ordinary operation of the Development), or dispose of any Hazardous Materials (including, without limitation, petroleum, its derivatives, crude oil or any fraction thereof), or any other substance the disposal of which is prohibited, con.lied or regulated under applicable law, or which poses a threat or nuisance to safety, health or the environment, including, without limitation, any business, operation or activity which would bring the Development within the ambit of, or otherwise violate, the Resource Consen/ation and Recovery Act of 1976, as amended by the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. Section 6901 et seq., or cause or - knowingly allow to be caused, a release or threat of release, of a nondiminimis quantity of hazardous substances on the Development as defined by, and within the ambit of, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and. Reauthorizafion Act of 1986, 42 U.S.C. Section 9601 et seq., or any similar state, county, regional or local statute providing for financial responsibility for cleanup for the release or threatened release of substances provided for thereunder. (d) The Borrower covenants and agrees that it shall take all appropriate response action, including any removal and remedial action, in the event of a release, emission, discharge or disposal of Hazardous Materials in, on, under or about the Development for which the Borrower is liable under state, federal or local environmental rules or regulations. (e) The Borrower shall, as soon as practical and in any event within 15 days, notify the Issuer and the Bondowner Representative of any written notice, letter, written citation, written order, written waming, written complaint, written claim or written demand that (i) the Borrower or any tenant has violated, or is about to violate, any federal, state, regional, county or local environmental, health or safety statute, law, rule, regulation, ordinance, judgment or order; (ii) there has been a release, or there is a threat of release, of Hazardous Materials (including, without limitation, petroleum, its derivatives, crude oil or any fraction thereof) from the Development; (iii) the Borrower or any tenant may be or is liable, in whole or in part, for the costs of cleaning up, ramediating, removing or responding to a release of Hazardous Materials (including, without limitation, petroleum, its derivatives, crude oil or any fraction thereof); or (iv) the Development is subject to a lien in favor of any governmental entity for any environmental law, rule or regulation arising from or costs incurred by such govemmental entity in response to a release of a Hazardous Materials (including, without limitation, petroleum, its derivatives, crude oil or any fraction thereof). (f) During t~e period in which the Loan Agreement is in effect, the Borrower hereby grants, and will cause any tenants to grant, to the Issuer and the Bondowner ReprasentalJve, their respective agents, attorneys, -11- employees, consultants and contractors an irrevocable license and authorization upon reasonable notice of not less than 48 houm to enter upon and inspect the Development and perform such tests, including, without limitation, subsurface testing, soils and ground water testing, and other tests which may physically invade the Development, as the Issuer or the Bondowner Representative, in its respective reasonable discretion, determines are necessary to protect the lien created by the Deed of Trust; provided that the party undertaking any such testing shall use reasonable efforts to minimize any disruption in the operation of the Development. The provisions of this Section 2.4 shall be for the full and equal benefit of the Issuer, and of the Bondowner Representative as assignee of the Issuer under the Assignment Agreement. (g) The Borrower agrees to protect, defend, hold harmless and indemnify the Issuer and the Bondowner Representative for, from, against and in respect of any and all claims, Icosos,.liabilities, damages (whether special, consequential or otherwise), settlements, penalties, interest and expenses (including any professional fees and expenses) which may be suffered or incurred by it relating to, arising out of or resurdng from or by reason of any and all present or future liabilities or obligations under any current federal, stale or local law (including common law), and regulations, orders and decrees relating to pollution 'control, environmental protection, or any other type of claim relating to the Development, with respect to: (i) the handling, storage, use, lransportation or disposal of any Hazardous Materials by the Borrower in or from the Development; (ii) the handling, storage, use, transportation or disposal {whether or not known to the Borrower) of any Hazardous Materials, which Hazardous Materials was a product, byproduct or otherwise resulted from operations conducted on the Development; or (iii) any intentional or unintentional emission, discharge or release (whether or not known to the Borrower) of any Hazardous Materials into or upon the air, surface water, ground water or land or any manufacturing, processing, distribution, use, treatment, disposal, transport or handling of such Hazardous Materials. This paragraph shall not obligate the Borrower with respect to any acts or omissions of any entity to whom the Development is sold or transferred in accordance with the provisions of Section 10 of the Regulator/Agreement, or which are attributable directly to the acts or omissions of the Issuer or the Bondowner Representative or their agents or assigns. ARTICLE Ill THE LOAN Section 3.1. Closina of the Loan. The closing of the Loan shall not occur until the following conditions are met: (a) the Issuer shall have received an original executed counterpart of this Loan Agreement, the Note, the Regulatory Agreement, the Fire District Deed of Trust and the Deed of Trust, together with evidence satisfactory to the Issuer of the recordation of the Regulatory .Agreement and the Deed of Trust in the official records of the County Recorder of the County, which may be by telephonic notice from a title company; and (b) no Event of Default nor any event which with the passage of time and/or the giving of notice would constitute an Event of Default under this Loan Agreement shall have occurred as evidenced by a certificate received from the Borrower. Section 3.2. Commitment to Execute the Note. The Borrower agrees to execute and deliver the Note and the Deed of Trust simultaneously with the execution of this Loan Agreement. Section 3.3. Amount and Source of Loan. The Issuer hereby makes to the Borrower and agrees to fund, and the Borrower hereby accepts from the Issuer, upon the terms and conditions set forth herein, the Loan and agrees to have the proceeds of the Loan applied and disbursed in accordance with the provisions of this Loan Agreement. Section 3.4. Disbursement of Loan Proceeds. (a) The Issuer hereby authorizes and directs the funding and disbursement of the first $ principal amount of the Loan on October _, 2001, subject to the condition that the Regulatory Agreement and the Dc~ of Trust shall have been executed and signed by the Borrower and duly recorded in the office records of the County Recorder of the County and the other Loan Documents have been executed and delivery by the respective parties thereto. The Borrower hereby authorizes the Issuer to disburse on the date of execution and delivery of Note the amount representing the first $ principal amount of Loan to the Borrower as follows: (i) $ to Title Company to pay a portion of the cost of the acquisition by the Borrower of the Development and ~tie and escrow fees, and (ii) $to the Bondowner to pay the Bondowner's fee related to the financing. (b) The Issuer hereby authorizes and directs the funding and disbursement of the remaining $ principal amount of the Loan, subject to the consent of the Bondowner Representative, which consent shall be given upon the satisfaction of the applicable conditions set forth in Exhibit D hereto. Any disbursement of the remaining principal amount of the Loan shall be used to pay or reimburse the Borrower for costs of construction of the Development (including payment of interest on the Note during the period of construction of the Development). The Issuer shall have no obligation to fund the remaining balance of the Loan unless and until the Bondowner Representative has received satisfactory evidence that Borrower's funds or funds from other sources in an amount equal to at least $ have been used to pay Development Costs. The Issuer shall have no obligation to fund the remaining $ prindpal amount of the Loan if and to the extent that the Bondowner Representative does not consent to and make such disbursement before ,2003. 7-&7 ARTICLE IV LIMITED LIABILITY Section 4.1. Limited Liabili~. All obligations and any liability of the Issuer incurred hereunder shall be limited, special obligations of the Issuer, payable solely and only from amounts received from the Borrower pursuant to this Loan Agreement. All obligations and any liability of the Issuer shall be further limited as provided in Sections 5.01, 6.13, 7.10 and 11.09 of the Indenture. ARTICLE V REPAYMENT OF THE LOAN Section 5.1. Loan Repayment. (a) The Loan shall be evidenced by the Note which shall be executed by the Borrower in the form attached hereto as Exhibit C. The Borrower agrees to pay to the Bondowner Representative, the principal of and interest on the Loan at the times, in the manner, in the amount and at the rate of interest provided in the Note and this Loan Agreement. The Borrower shall have the dght to prepay all or any portion of the Loan at any time, but only following thirty (30) days pdor written notice to the Bondowner Representative and the Issuer, at a prepayment pdce equal to the principal of the Loan to be prepaid plus accrued interest thereon to the date of prepayment, plus a prepayment premium fee (which shall be retained by the Bondowner Representative for its own account) equal to six (6) months' interest on the principal amount being prepaid. (b) The Borrower further agrees to pay all taxes and assessments, general or special, including, without limitation, all ad valorem taxes, concerning or in any way related to the Development, or any part thereof, and any other governmental charges and impositions whatsoever, foreseen or unforeseen, and all utility and other charges and assessments with respect thereto; provided, however, that the Borrower reserves the right to contest in good faith the legality of any tax or governmental charge concerning or in any way related to the Development. In addition, the Borrower agrees to pay any loan fee, processing fee and all IJtle, escrow, recording and closing costs and expenses, any appraisal costs and all other reasonable fees and costs associated with or required in connection with the Bonds, the Regulatory Agreement and Indenture; including but not limited to any such amounts described in Section 8.06 of the Indenture. (c) The Borrower hereby acknowledges and consents to the assignment by the Issuer to the Bondowner Representative of its rights under this Loan Agreement (excepting only the Issuer's rights under Section 6.7, and the Issuer's retained rights under Sections 2.3, 2.4, 5.1(b), 5.1(d) and 7.4 hereunder), and the appointment of the Bondowner Representative as agent of the Issuer to collect the payments on the Loan, all as set forth in the Indenture. (d) The Borrower hereby agrees to pay the amounts described in Section 23 of the Regulator Agreement. Section 5.2. Nature of the Bonower's Obliqations. The Borrower shall repay the Loan pursuant to the terms of the Note irrespective of any rights of set-off, recoupment or countemlaim the Borrower might otherwise have against the Issuer or any other person. The Borrower will not suspend, discontinue or reduce any such payment or (except as expressly provided herein) terminate this Loan Agreement for any cause, including, without limiting the generality of the foregoing, (i) any delay or interruption in the operation of the Development; (ii) the failure to obtain any permit, order or action of any kind from any govemmental agency relating to the Loan or the Development; (iii) any event constituting force majeure; (iv) any acts or circumstances that may constitute commercial frustration of purpose; (v) any change in the laws of the United States of America, the State or any political subdivision thereof; or (vi) any failure of the Issuer or the Borrower to perform or observe any covenant whether expressed or implied, or to discharge any duty, liability or obligation arising out of or connected with the Note; it being the intention of the parlies that, as long as the Note or any po~lion thereof remains outstanding and unpaid, the obligation of the Borrower to repay the Loan and provide such moneys shall continue in all events. This Section 5.2 shall not be construed to release the Borrower from any of its obligations hereunder, or, except as provided in this Section 5.2, to prevent or restdct the Borrower from asserting any rights which it may have against the Issuer under the Note or the Deed of _ Trust or under any provision of law or to prevent or restrict the Borrower, at its own cost and expense, from prosecuting or defending any action or proceeding by or against the Issuer or the Bondowner Representative or taking any other action to protect or secure ils rights. Notwithstanding the foregoing, neither the officers or the directors of the Borrower shall be personally liable for the amounts owing under the Note or the Deed of Trust; and the Issuer's remedies in the event of a default under the Loan shall be limited to those remedies set forth in Section 7.3 hereof and the commencement of foreclosure under the Deed of Trust and the exemise of the power of sale or other rights granted thereunder. Notwithstanding the Indenture, no assignment by the Issuer of its rights hereunder shall preclude the Issuer from proceeding directly against the Borrower in connection with the obligation of the Borrower to indemnify the Issuer under Section 6.7 hereof or Section 7 of the Regulatory Agreement or to make any payment to the Issuer required to be paid by the Borrower pursuant to the provisions of Sections 2.3, 2.4, 5.1(b), 5.1(d) or 7.4 hereof. Nothing in this Section 5.3 shall prohibit the Borrower from contesting in good faith any lien (other than the lien of the Deed of Trust). Section 5.3. No Encumbrances. The Borrower shall not create, permit, file or record against the Development, without the prior written consent of the Bondowner Representative, any deed of trust lien or other lien, inferior or superior to the lien of the Deed of Trust, other than the grants and loans which are expressly subordinated to the Loan and liens for taxes not yet due and payable. ARTICLE VI FURTHER AGREEMENTS Section 6.1. Successor to the Issuer. The Issuer will at all times use its best efforts to maintain the powers, functions, duties and obligations now reposed in it pursuant to law or assure the assumptions of its obligations hereunder by any public trust or political subdivision succeeding to its powers. Section 6.2. Borrower Not to Disoose of Assets: Conditions Under Which Exceptions Permitted. The Borrower agrees that during the term of this Loan Agreement it will not dispose of all or substantially all of its assets nor consolidate with nor merge into any entity unless (i) the Issuer and the Bondowner Representative shall consent to the disposition, consolidation or merger, (ii) the acquirer of its assets or the entity with which it shall consolidate or into which it shall merge shall be an individual or a corporation, partnership or other legal entity organized and existing under the laws of the United States of America or one of the states of the United States of America and shall be qualified and admitted to do business in the State; (iii) such acquiring or remaining entity shall assume in writing all of the obligations of the Borrower under this Loan Agreement, the Regulatory Agreement, the Note and the Dccd of Trust; and (iv) such acquiring or remaining entity shall be in accordance with Section 2.2(t) hereof. Section 6.3. Coooeration in Enfomement of R~ulatory Aareement. The Borrower hereby covenants and agrees as follows: (a) to comply with all provisions of the Regulator/Agreement; (b) to advise the Issuer in writing promptly upon leaming of any default with respect to the - covenants, obligations and agreements of the Borrower set forth in the Regulatory Agreement; (c) upon written direction by the Issuer, to cooperate fully and promptly with the Issuer in enforcing the terms and provisions of the Regulatory Agreement; and (d) to file in accordance with the lime limits established by the Regulatory Agreement all reports and certificates required thereunder, and the Certification to the City Clerk of the Treasury required by Section 4(b) of the Regulatory Agreement. The Issuer shall not incur any liability in the event of any breach or violation of the Regulatory Agreement by the Borrower, and the Borrower agrees to indemnify the Issuer from any claim or liability for such breach pursuant to Section 6.7 hereof. Section 6.4. Additional Instruments. The Borrower hereby covenants to execute and deliver such additional instruments and to perform such add~Jonal acts as may be necessary, in the opinion of the Issuer, to carry out the intent of the Loan Documents or fo perfect or give further assurances of any of the rights granted or provided for in the Loan, the Deed of Trust and the Note. Section 6.5. Books and Records. The Borrower hereby covenants to permit the Issuer and the Bondowner Representative or their duly authorized represer~',~tlves access during normal business hours to the books and records of the Borrower pertaining to the Loan and the Development, and to make such books and records available for audit and inspection, at reasonable times and under reasonable conditions to the Issuer, the Bondowner Representative and their duly authorized representatives and at the sole expense of the Borrower. Section 6.6. Notice of Certain Events. The Borrower hereby covenants to advise the Issuer and the Bondowner Representative promptly in writing of the occurrence of any Event of Default hereunder or any event '"/- 71 which, with the passage of time or service of notice, or both, would constitute an Event of Default hereunder, specifying the nature and period of existence of such event and the actions being taken or proposed to be taken with respect thereto. In addition, the Borrower hereby covenants to advise the Issuer and the Bondowner Representative promptly in writing of the occurrence of any Act of Bankruptcy. Section 6.7. Indemnification of the Issuer and Bondowner Reeresentative. The Borrower hereby covenants and agrees to indemnify, hold harmless and defend the Issuer, the aondowner Representative and their officem, members, supervisors, directors, officials, employees and any agents of the Issuer and each of them from and against (i) any and all claims arising from any act or omission of the Borrower or any of its agents, servants, employees or licensees, in connection with the Loan or the Development; (ii) the operation, use, occupancy, maintenance, or ownership of the Development (including compliance with laws, ordinances and rules and regulations of public authorities relating thereto); or (iii) any obligation or liability of the Issuer under the Americans with Disabilities Act with respect to the Development or otherwise arising from the making of the Loan, including all costs and fees actually incurred by the Issuer in any way arising from the making of the Loan or the making of the Issuer Loan; and (iv) all reasonable costs, counsel fees, expenses or liabilities incurred in connection with any such claim or proceeding brought thereon. In the event that any action or proceeding is brought against the Issuer, the Bondowner Representative or any of its officers, members, supervisors, directors, officials or employees, with respect to which indemnity may be sought hereunder, the Borrower, upon written notice from the indemnified party, shall assume the investigation and defense thereof, including the employment of counsel selected by the indemnified party and the payment of all expenses related thereto, with full power to litigate, compromise or settle the same in consultation with the Issuer; provided that the issuer shall have the right to review and approve or disapprove any such compromise or settlement. Notwithstanding any transfer of the Development to another owner, unless such transfer is in accordance with the provisions of Section 10 of the Regulatory Agreement, the Borrower shall remain obligated to indemnify pursuant to this Section 6.7 if such subsequent owner fails to indemnify any party entitled to be indemnified hereunder. Nothing in this paragraph shall obligate the Borrower for any claims, obligations or liabilities attributable directly to the gross negligence or willful misconduct of the Bondowner Representative or the Issuer. Section 6.8. Consent to Assi~lnment. The Issuer has made an assignment under the Indenture of all dghts and interest of the Issuer in and to this Loan Agreement (except its rights under Section 6.7, and its retained rights under Sections 2.3, 2.4, 5.1(b) and 7.4 hereof), the Note and the Deed of Trust and the Bondowner Representative is authorized to collect the payments by the Borrower on the Loan; and the Borrower hereby consents to all such assignments and such appointment. Section 6.9. Comr)liance with Usury Laws. Notwithstanding any other provision of this Loan Agreement, it is agreed and understood that in no event shall this Loan Agreement, with respect to the Note or other instrument of indebtedness, be construed as requiring the Borrower or any other person to pay interest and other costs or considerations that constitute interest under any applicable law which are contracted for, charged or received pursuant to this Loan Agreement in an amount in excess of the maximum amount of interest allowed under any applicable law. In the event of any acceleration of the payment of the principal amount of the Note or other evidence of indebtedness, that portion of any interest payment in excess of the maximum legal rate of interest, if any, provided for in this Loan Agreement or related documents shall be cancelled automatically as of the date of such acceleration, or if theretofore paid, credited to the principal amount. The provisions of this Section prevail over any other provision of this Loan Agreement. Section 6.10. Title to the Develo~)menL The Borrower shall concurrently with the closing of the Loan have fee title to the Development free and clear of any lien or encumbrance except for (i) liens for nondelinquent 7'72 · -- assessments and taxes not yet due or which am being contested in good faith by appropriate proceedings; (ii) the Deed of Trust; (iii) a subordinate deed of trust secudng a loan made by the City of Cupertino to the Borrower; (iv) one or more subordinate deeds of trust securing a loan (other than the Loan) by the Issuer to the Borrower to finance costs of the Development; (v) one or more subordinate deeds of trust securing loans from various other governmental agencies and philanthropic organizations to finance costs of the Development in an aggregate amount not to exceed $ ; and (vi) any other encumbrances approved by the issuer and the Bondowner Representative. Concurrently with the closing of the Loan, the Borrower shall cause to be delivered to the Bondowner Representative one or more title policies, naming the Bondowner Representative as the insured, as its interests may appear with endorsements specified in the Bondowner Representative's escrow instructions. Section 6.11. Payment of Taxes. The Borrower has filed or caused to be filed all federal, state and local tax returns or information ratums which are required to be filed with 'respect to the Development and of which Borrower has knowledge, and has paid or caused to be paid all taxes as shown on said ratums or on any assessment received by it, to the extent that such taxes have become due and payable other than those payable without penalty or interest. Section 6.12. No Untrue Statements. Neither this Loan Agreement nor any other document, certificate or statement fumished to the Issuer or the Bondowner Representative by or on behalf of the Borrower, contains to the best of the Borrower's knowledge any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein and therein not misleading or incomplete as of the date hereof. It is specifically understood by Borrower that all such statements, representations and warranties shall be deemed to have been relied upon by the Issuer as an inducement to make the Loan, and by the Bondowner Representative as an inducement to make the Issuer Loan, and that if any such statements, representations and warranties were materially incorrect at the time they were made, the Issuer may consider any such misrepresentation or breach an '- Event of Default. Section 6.13. Insurance. The Borrower shall provide policies of property damage (fire, extended coverage, vandalism and malicious mischief), loss of rent, public liability and worker's compensation insurance with respect to the Development and the operation thereof issued by an insurer currently rated B/Ill or better in Best's Insurance Reports, in form and amounts satisfactory to the Bondowner Representative. Section 6.14. Tax Exemot Status of the Bonds. (a) It is the intention of the Issuer and the Borrower that interest on the Bonds shall bo and remain excludable from gross income for federal income taxation purposes, and to that end the covenants and agreements of the Borrower in this Section 6.14 are for the benefit of the Bondowners and the Issuer. (b) The Borrower covenants and agrees that it will not knowingly and willingly use or permit the use of any of the funds provided by the Issuer hereunder or any other funds of the Borrower, directly or indirectly, in such manner as would, or enter into, or allow any 'related person" (as defined in Section 147(a)(2) of the Code) to enter into, any arrangement, formal or informal, for the purchase of the Bonds that would, or take or omit to take any other ec'don that would cause the Bonds fo be "a~bitrage bonds" within the meaning of Se~on 148 of the Code or 'federally guaranteed" within the meaning of Section 149(b) of the Code and applicable regulations promulgated from time to time thereunder. (c) In the event that at any time the Borrower is of the opinion or becomes otherwise aware that for purposes of this Section 6.14 it is necessary to restrict or to limit the yield on the investment of any _ moneys held under the Indenture or othe~se by the Bondowner Representative, the Borrower shall determine the limitations and so instruct the Bondowner Representative in writing and cause the Bondowner Representative to comply with those limi',~ons under the Indenture. (d) The Borrower will take such action or actions as may be reasonably necessary in the opinion of counsel to the Issuer, or of which it otherwise becomes aware, to fully comply with Section 148 of the Code. (e) The Borrower further agrees that it shall not discriminate on the basis of race, creed, color, sex, sexual preference, soume of income (e.g. AFDC, SSI), physical disability, national origin or marital status in the lease, use or occupancy of the Development or in connection with the employment or application fur employment of persons for the operation and management of the Development, to the extent required by applicable State or federal law. (f) The Borrower further warrants and covenants that it has not executed and will not execute any other agreement, or any amendment or supplement to'any .other agreement, with provisions contradictory to, or in opposition to, the provisions, of this Loan Agreement and of the Regulatory Agreement, and that in any event, the requirements of this Loan Agreement and the Regulatory Agreement are paramount and controlling as to the rights and obligations herein set forth and supersede any other requirements in conflict herewith and therewith. (g) The Borrower shall not purchase, and shall rise its best efforts to prevent any guarantor of the Borrower from pumhasing, pursuant to an arrangement, formal or informal, any Bonds. (h) The Borrower will use due diligence to complete the conslnJctlon of the Development and reasonably expects to fully expend the portion of the Loan to be used to finance such construction for costs of construction within three years of the date of this Loan Agreement. (i) The Borrower further warrants and covenants that the portion of the Development financed with the proceeds of the Loan will be used in activities that do not constitute an unrelated trade or business of the Borrower. (j) The Bormwar will take such action or actions as necessary to ensure compliance with Sections 2.2(j), (n), (p), (r), (s), (t), (u) and (v) hereof. (k) The Borrower will make timely payment of any rebate amount due to the federal government by reason of any investment of the proceeds of the Note at a yield in excess of the yield on the Bonds. Section 6.15. Reaulatorv Aareement. In order to maintain the exclusion from gross income under federal tax law of interest on the Bonds and to assure compliance with the laws of the State of Califomia and the Act, 'the Borrower hereby agrees that it shall, concurrently with or before the execution and delivery of the Bonds, execute and deliver and cause to be recorded the Regulatory Agreement. The Borrower shall comply with every term of the Regulatory Agreement, and the Borrower hereby acknowledges that in the event of a default under the Regulatory Agreement the Loan may be accelerated. The Borrower agrees to cause any amendments to the Regulatory Agreement to be recorded in the appropriate official public records. The books and records of the Borrower pe~ining to the incomes of Very Low-Income Tenants residing in the Development shall be open to inspection by any authorized representative of the Issuer and the Bondowner Representative. Section 6.16. Useful Life. The Bormwar hereby represents and warrants that, within the meaning of Section 147(a)(14) of the Code, the average maturity of the Bonds does not exceed 120 percent of the average reasonably expected economic life of the facilities being financed with the proceeds of the Bonds. --. Section 6.17. Federal Guarantee Prohibition. The Borrower shall take no action, nor permit nor suffer any action to be taken if the result of the same would be to cause the BondA to be 'federally guaranteed" within the meaning of Section 149(b) of the Code. Section 6.18. Prohibited Facilities. The Borrower represents and warrants that no portion of the proceeds of the Note shall be used to provide any airplane, skybox or other private luxury box, health club facility, facility primarily used for gambling, or store the principal business of which is the sale of alcoholic beverages for consumption off premises, and no portion of the proceeds of the Note shall be used for an office unless (i) the office is located on the premises of the facilities constituting the Development and (ii) not more than a de minimus amount of the functions to be performed at such office is not related to the day-to-day operations of the Development. Section 6.19. Completion of Improvements bv Bondowner Representative. If Bondowner Representative takes possession of the Development, it may take any and all actions necessary in its judgment to complete construction of the Improvements, including but not limited to making changes in the Plans and Specifications, work, or materials and entering into, modifying or terminating any contractual arrangements, subject to Bondowner Representative's right at any time to discontinue any work without liability. If Bondowner Representative elects to complete the Improvements, it will not assume any liability to the Borrower or to any other person for completing the Improvements or for the manner or quality of construction of the Improvements, and the Borrower expressly waives any such liability. The Borrower irrevocably appoints Bondowner Representative as its attorney-in-fact, with full power of substitution, to complete the Improvements, at Bondowner Representative's option, either in the Borrower's name or in its own name. In any event, all sums expended by Bondowner Representative in completing the construction of the Improvements will be considemcl to have been disbursed to the Borrower and will be secured by the Collateral for the Loan. Any such sums that cause the principal amount of the Loan to exceed the face amount of the Note will be considered to be an additional Loan to Borrower, bearing interest at the Note rate and being "- secured by the Collateral. For these purposes, the Borrower assigns to Bondowner Representative all of its dght, title and interest in and to the Development Documents; however, Bondowner Representative will not have any obligation under the Development Documents unless Bondowoer Representative expressly hereafter agrees to assume such obligations in writing. Bondowner Representative will have the right to exercise any rights of Borrower under the Development Documents upon the occurrence of an Event of Default. 7-7~ ARTICLE VII EVENTS OF DEFAULT AND REMEDIES Section 7.1. Events of Default. Each of the following shall be an 'Event of Default": (a) The Borrower shall fail to pay when due the amounts required to be paid under this Loan Agreement or the Note when the same shall become due and payable in accordance with the terms of this Loan Agreement or the Note, including a failure to repay any amounts which have been previously paid but are recovered, attached or enjoined pursuant to any insolvency, receivership, liquidation or similar proceedings; or (b) The Borrower shall fail to perform or observe any of its covenants or agreements contained in this Loan Agreement, the Regulatory Agreement, the Note or the Deed of Trust, other than as specified in paragraph (a) above, and such failure shall continue dudng and after the period specified in Section 7.2; or (c) Any representation or warranty of the Borrower hereunder shall be determined by the Bondowner Representative or the Issuer to have been false in any material respect when made; or (d) If there is, in the sole determination of the aondowner Representative, any material or adVerse change in the financial condition of the Borrower or a filing of a complaint for receivership against the Borrower which is not dismissed within sixty (60) days of the filing date, or a filing of a voluntary petrdon for bankruptcy or for a reorganization, or a filing of an involuntary petition for bankruptcy or for a reorganization which is not dismissed within sixty (60) days of the filing date, or if the Borrower becomes insolvent or makes a general assignment for the benefit of creditors or consents to the appointment of a receiver of all or any of its assets, or voluntarily suspends its usual business; or (e) the occurrence of an Event of Default under and as defined in the Indenture; or (f) The Borrower defaults under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any creditor or person that may materially affect any of the Borrower's property or the Borrower's ability to repay the Loan or perform its obligations under this Agreement or any of the Loan Documents. (g) This Agreement or any of the Loan Documents ceases to be in full fome and effect (including failure or any collateral document to create a valid and perfected security interest or lien) at any time and for any reason. (h) Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self- help, repossession or any other method, by any creditor of the Borrower or by any governmental agency against any collateral securing the Loan. This includes a gamishment of any of the Borrower's accounts, including deposit accounts, with Bondowner Representative. However, this Event of Default shall not apply if there is a good faith dispute by the Borrower as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if the Borrower gives Bondowner Representative written notice of the creditor or forfeiture proceeding and deposits with Bondowner Representative monies or a surety bond for the creditor or forfeiture proceeding, in an amount determined by Bondowner Representative, in its sole discretion, as being an adequate reserve or bond for the dispute. (i) The Improvements are not constructed in accordance with the Plans and Specifications or in accordance with the terms of the Construction Contract. -'/ (j) Prior to the completion of construction of the Improvements and equipping of the Development, the construction of the Improvements or the equipping of the Development is abandoned or work thereon ceases for a period of more than ten (10) days for any reason, or the Improvements are not completed for purposes of final payment to the General Contractor prior to .2002, regardless of the reason for the delay. (k) Sale, transfer, hypothecation, assignment, or conveyance of the Development or any portion thereof or interest therein by the Borrower without Bondowner Representative's prior written consent. (I) All or any material portion of the Collateral is condemned, seized, or appropriated without compensation, and the Borrower does not within thirty (30) days after such condemnation, seizure, or appropriation, initiate and diligently prosecute appropriate action to contest in good faith the validity of such condemnation, seizure, or appropriation. Section 7.2. Notice of Default; Opportunity to Cure. No default under Section 7.1(a), (b), (c) or (e) hereof shall constitute an Event of Default until: (a) The Issuer or the Bondowner Representative, by registered or certifz, d mail, shall give notice to the Borrower of such default specifying the same and stating that such notice is a "Notice of Default'; and (b) The Borrower shall have had 30 days (10 days with respect to a payment default) after receipt of such notice to correct the default and shall not have corrected it; provided, however, that if the default stated in the notice is of such a nature that it cannot be corrected within 30 days (or 10 days with respect to a payment default) and if the Bom)wet has not been given a notice of a similar default within the preceding 12 months, such default shall not constitute an Event of Default hereunder so long as (i) the Borrower institutes corrective action within said 30 days (or 10 days, as applicable) and diligently pursues such action until the default is corrected and such default is cured within 90 days, and (ii) in the opinion of Bond Counsel to the Issuer, the failure to cure said default within 30 days (or 10 days, as applicable) will not adversely affect the exclusion from gross income for federal income tax purposes of interest on the Bonds. Section 7.3. Remedies. Whenever any Event of Default under Section 7.1 hereof shall have happened and be continuing, the Issuer and the Bondowner Representative may take whatever remedial steps as may be allowed under the law, this Loan Agreement and the Deed of Trust. Section 7.4. Attomevs' Fees and Expenses. If an Event of Default occurs and if the Issuer or the Bondowner Representative should employ attorneys or incur expenses for the enfomement of any obligation or agreement of the Borrower contained herein, the.Borrower on demand will pay to the Issuer and/or the Bondowner Representative the reasonable fees of such attorneys and the reasonable expenses so incurred, including cour{ appeals. Section 7.5. No Remedy Exclusive. No remedy herein conferred upon or reserved to the Issuer or the Bondowner Representative is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to evm'y other remedy given under this Loan Agreement or now or hereafter existing at law or in equity or by siak~te. No delay or omission to exemise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exemised from time to time and as often as may be deemed expedient. In order to entitle the Issuer or the Bondoweer Representative to exemise any remedy reserved to either of them in this Article VII, it shall not be neceasa~y to give any notice, other than such notice as may be herein expressly required. Such rights and remedies as are given the Issuer hereunder shall also extend to the Bondowner Representative, as 7-77 assignee of the Issuer's interests in the Note, the Deed of Trust and this Loan Agreement, and the Bondowner Representative, as assignee of the Issuer's interests in the Note, the Deed of Trust and this Loan Agreement shall be deemed a third party beneficiary of ali covenants and agreements heroin contained. Section 7.6. No Additional Waiver Imolied by One Waiver. In the event any agreement or covenant contained in this Loan Agreement should be breached by the Borrower and thereafter waived by the Issuer, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder including any other breach of the same agreement or covenant. ARTICLE VIII MISCELLANEOUS Section 8.1. Entire A=lreement. This Loan Agreement, the Note, the Regulatory Agreement and the Deed of Trust constitute the entire agreement and supersede all prior agreements and undemtandings, both written and oral, between the Issuer and the Borrower with respect to the subject matter hereof. Section 8.2. Notices. All notices, cert~catas or other communications shall be in writing and shall be sufficiently given and shall be deemed given on the second day following the date on which the same have been personally delivered or mailed by first class mail postage prepaid, addressed as follows: if to the Issuer, to City of Cupertino, 10300 Torm Avenue, Cupertino, California 95014 Attention: Director of Administrative Services; if to the Borrower, to Cupertino Community Services, 10185 N. Stelling Road, Cupertino, California 95014; and if to the Bondowner Representative, to Cupertino National Bank, 20230 Stevens Creek Boulevard, Cupertino, California 95014 Attention: Ms. Roxanne Vane, Sr. Vice President. Section 8.3. Assionments. This Loan Agreement may not be assigned by any party without the prior written consent of the other, except that the Issuer shall assign its rights under this Loan Agreement pursuant to the Indenture, and except also that the Borrower may assign to any transferee its rights under this Loan Agreement as provided by Section 6.2. Section 8.4. Severabilitv. If any provision of this Loan Agreement shall be held or deemed to bo or shall, in fact, be illegal, inoperative or unenforceable, the same shall not affect any other provision or provisions herein contained or render the same invalid, inoperative, or unenforceable to any extent whatever. Section 8.5. Execution of Countemarts. This Loan Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Section 8.6. Amendments, Chanaes and Modifications. Except as othenvise provided in this Loan Agreement, subsequent to the issuance of the Note and prior to its payment in full (or provision for payment thereof having been made in accordance with the provisions of the Indenture), this Loan Agreement may not be effectively amended, changed, modified, altered or terminated without the written consent of the parties hereto and the Bondowner Representative. Section 8.7. GoveminQ Law. This Loan Agreement shall be govemed exclusively by and construed in accordance with the applicable laws of the State of Califomia. Section 8.8. Term of Aareement. This Loan Agreement shall be in full force and effect from the date hereof until such time as the Note shall have been fully paid or prevision rnade for such payment. Time is of the essence in this Loan Agreement. Section 8.9. Survival of Aareement. NI agreements, representations and warranties made herein shall survive the making of the Loan. Section 8.10. Bindina Effect; Third Party Beneficiary. This Loan Agreement shall inure to the benefit of and shall be binding upon the Issuer, the Borrower and their respective successors and e$_,igns. The Bondowner Representative is intended to be a third party beneficiary of this Loan Agreement. IN WITNESS WHEREOF, the pa~ties hereto have executed this Loan Agreement, all as of the date first above written. CITY OF CUPERTINO By: CiW Manaaer CL]PERTINO COMMUNITY SERVICES By: Its: 03028.01:J5549 7- o EXHIBIT INCOME COMPUTATION AND CERTIFICATION NOTE TO APARTMENT OWNER: This form is designed to assist you in computing Annual Income in accordance with the method set forth in the Department of Housing and Urban Development ('HUD") Regulations (24 CFR 813). You should make certain that this form is at all times up to date with the HUD Regulations. Re: Cupertino Community Services, Heart of C~JparlJno Project, 10114 and 10214 Vista Drive, Cupertino, Califomia I/We, the undersigned state that I/we have read and answered fully, frankly and personally each of the following questions for all persons who are to occupy the unit being applied for in the above apartment project. Listed below are the names of all persons who intend to reside in the unit: 1. 2. 3. 4. 5. Name of Members Relationship of the to Heed of Social Security Place of Household Household A,qe Number Em~)lovment HEAD SPOUSE Income Computation 6. The total ~nticipated income, calculated in accon~ance with the provisions of this paragraph 6, of the person listed above for the 12-month period beginning the date that I plan to move into a unit is $ Included in the total anticipated income listed above are: (a) all wages and salaries, overtime pay, commissions, fees, tips and bonuses and other compensation for personal services, before payroll deductions; (b) the net income from the operation of a business or profession or from the rental of real or personal property (without deducting expenditures for business expansion or amorlization of capital indebtedness or any allowance for depreciation of capital assets); (c) interest and dividends (including income from assets excluded below); A.1 7-81 (d) the full amount of periodic payments received from social security, annuities, insurance policies, retirement funds, pensions, disability or death benefits and other similar types of periodic receipts, including any lump sum payment for the delayed star of a periodic payment; (e) payments in lieu of eamings, such as unemployment and disability compensation, workmen's compensation and severance pay; (f) the maximum amount of public assistance available to the above persons other than the amount of any assistance specifically designated for shelter and utilities; (g) periodic and determinable allowances, such as alimony and child support payments and regular contributions and gifts received from persons not residing in the dwelling; (h) all regular pay, special pay and allowances of a member of the Armed Forces (whether or not living in the dwelling) who is the head of the household or spouse; and (i) any earned income tax credit to the extent that it exceeds income tax liability. Excluded from such anticipated income are: (a) casual, sporadic or irregular gifts; (b) amounts which are specifically for or in reimbursement of medical expenses; (c) lump sum additions to family assets, such as inheritances, insurance payments (including payments under health and accident insurance and workmen's compensation), capital gains and settlement for personal or property losses; (d) amounts of educational scholarships paid directly to the student or the educational institution, and amounts paid by the govemment to a veteran for use in meeting the costs of tuition, fees, books and equipment. Any amounts of such scholarships or payments to veterans not used for the above purposes are to be included in income; (e) special pay to a household member who is away from home and exposed to hostile fire; (t) relocation payments under Title II of the Uniform Relocation Assistance and Real Property Acquisition Policies Law of 1970; (g) foster child care payments; (h) the value of coupon allotments for the purchase of food pursuant to the Food Stamp Law of 1977; (i) payments to volunteers under the Domestic Volunteer Service Law of 1973; (j) payments received under the Alaska Native Claims Settlement Law; (k) income derived from certain submarginal land of lhe United States that is held in trust for certain Indian ~bes; A-2 (I) payments or allowances made under the Department of Health and Human Services' Low- income Home Energy Assistance Program; (m) payments received from the Job Training Partnership Law; (n) income derived from the disposition of funds of the Grand River Band of Ottawa Indians; and (o) the first $2,000.00 of per capita shares received from judgment funds awarded by the Indian Claims Commission or the Court of Claims. 7. Do the persons whose income or conb'ibutions are included in item 6 above: (a) have savings, stocks, bonds, equity in real property or other form of capital invesiment (excluding the values of necessary items of personal property such as furniture and automobiles and interests in Indian trust land) Yes ~ No ~.; or (b) have they disposed of any assets (other than at a foreclosure or bankruptcy sale) during the last two years at less than fair market value? Yes __ No ~ (c) If the answer to (a) or (b) above is yes, does the combined total value of all such assets owned or disposed of by all such persons total more than $5,0007 Yes~ No ; '- (d) If the answer to (c) above is yes, state: (1) the amount of income expected to bo derived from such assets in the 12-month period beginning on the date of initial occupancy in the unit that you propose to rent: $ , and (2) the amount of such income, if any, that was included in item 6 above: $ 8. (a) Are all of the individuals who propose to reside in the unit full-time students*?. Yes No *A full-time student is an individual enrolled as a full-time student during each of 5 calendar months during the calendar year in which occupancy of the unit begins at an educational organization which normally maintains a regular faculty and curriculum and normally has a regularly enrolled body of students in attendance and is not an individual pursuing a full-time course of institutional or farm training under the supervision of an accredited agent of such an educational organization or of a stale or political subdivision thereof. (b) If the answer to 8(a) is yes, is at least I of Itc proposed occupants of the unit a husband and wife entitled to file a joint federal income tax retum? Yes No 9. Neither myself nor any other occupant of the unit I/we propose to rent is the owner of the rental housing project in which the unit is located (hereinafter the 'Owner'), has any family relationship to the Owner, or owns directly or indirectly any interest in the Owner. For purposes of this paragraph, indirect ownership by an individual A-3 7- 3 shall mean ownership by a family member, ownership by a corporation, partnership, estate or trust in proportion to the ownership or beneficial interest in such corporation, partnership, estate or trustee held by the individual or a family member; and ownership, direct or indirect, by a partner of the individual. 10. This certificate is made with the knowledge that it will be relied upon by the Owner to determine maximum income for eligibility to occupy the unit; and I/we declare that all information set forth herein is tree, correct and complete and based upon information Ilwe deem reliable and that the statement of total anticipated income contained in paragraph 6 is reasonable and based upon such investigation as the undersigned deemed necessary. 11. Ilwe will assist the Owner in obtaining any information or documents required to vedfy the statements made herein, including either an income verification from my/our present employer(s) or copies of federal tax returns for the immediately preceding calendar year. 12. I/we acknowledge that Ilwe have been advised that the making of any misrepresentation or misstatement in this declaration will constitute a matedal breach of my/our agreement with the Owner to lease the . unit and will entitle the Owner to prevent or terminate my/our occupancy of the unit by institution of an action for ejection or other appropriate proceedings. I/we declare under penalty of perjury that the foregoing is tree and correct. Executed this day of in the City of ,Califomia. Applicant Applicant [Signature of all persons over the age of 18 years listed in number 2 above required] FOR COMPLETION BY FACILITY OWNER ONLY: 1. calculation of eligible income: a. Enter amount entered for entire household in 6 above: $ b.(1) If answer fo 7(c) above is yes, enter the total amount entered in 7(d)(1), subtract from that figure the amount entered in 7(d)(2) and enter the remaining balance ($ (2) Multiply the amount entered in 7(c) times the current passbook savings rate to determine what the total annual earnings on the amount in 7(c) would be if invested in passbook savings ($ 1, subtract from that figure the amount entered in 7(d)(2) and enter the remaining balance ($ (3) Enter at fight the greater of the amount calculated under (1) or (2) above: $ ; A-4 c. TOTAL ELIGIBLE INCOME (Line 1.a plus line 1.b(3)): $ 2. The amount entered in 1.c: Qualifies the applicant(s) as a Low Income Tenant(s). Qualifies the applicant(s) as a Very Low Income Tenant(s). Does not qualify the applicant(s) as a Low Income Tenant(s) or a Very Low Income Tenant(s). 3. Number of unit assigned: Bedroom Size: Rent: $. 4. This unit [was/was not] last occupied for a period of 31 consecutive days by persons whose aggregate anticipated annual income as cerlJfied in the above manner upon their initial occupancy of the apartment unit qualified them as Lower Income Tenants or Very Low Income Tenants, as applicable. 5. Method used to verify applicant(s) income: Employer income verification. Copies of tax retums. Other ( ) Manager A-5 INCOME VERIFICATION (for employed persons) The undersigned employee has applied for a rental unit located in a development financed by a loan (the "Loan") from the City of Cupertino. Evep/income statement of a prospective tenant must be s~ngently verified. Please indicate below the employee's current annual income from wages, overtime, bonuses, commissions or any other form of compensation received on a regular basis. Annual wages Overtime Bonuses Commissions Total current income I hereby certify that the statements above are true and complete to the best of my knowledge. Signature Date Title I hereby grant you permission to disclose my income to in order that they may determine my income eligibility for rental of an apartment located in their project which has been financed under the Loan. Signature Data Please send to: A-6 INCOME VERIFICATION (for self. employed persons) I hereby attach copies of my individual federal and state income tax retums for the immediately preceding calendar year and certify that the information shown in such income tax reams is true and complete to the best of my knowledge. Signature Date A-7 7-~7 EXHIBIT B Period Covered (Annual) CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE The undersigned, Cupertino Community Services (the 'Borrower'), has read and is thoroughly familiar with the provisions of the various loan documents associated with the Borrower's participation in the City of Cupertino's (the "Issuer') Housing Program, such documents including: 1. The Regulatory Agreement and Declaration of Restrictive Covenants dated as of October 1, 2001 (the "Regulatory Agreement"), between the Borrower amd the Issuer; 2. The Loan Agreement dated as of October 1, 2001 (the 'Loan Agreement"), between the Borrower and the Issuer; and 3. The Note dated October _, 2001 from the Borrower to the Issuer, and the Deed of Trust and the Assignment of Rents and Leases (as such terms are defined in the Loan Agreement). As of the date of this Certificate, the following percentages of completed residential units in the Development (i) are occupied by Low Income Tenants or Very Low Income Tenants (as such terms are defined in the Regulatory Agreement), as applicable, or (ii) are currently vacant and being held available for such occupancy and have been so held continuously since the da~e a Low Income Tenant or a Very Low Income Tenant vacated such unit; as indicated: Total Units Completed: Number of Units Occupied by Low Income Tenants: Percent of Total Units Occupied by Low Income Tenants: Type of Units Occupied by Low Income Tenants: Unit Nos. Rent Charged B-1 Number of Units Occupied by Very Low Income Tenants: Percent of Total Units Occupied by Very Low Income Tenants: Type of Units Occupied by Very Low Income Tenants: 'Unit Nos. Rent Charged Held vacant for occupancy continuously since last occupied by Very Low Income Tenant or Low Income Tenant pement, Unit Nos. Vacant Units percent, Unit Nos. The undersigned hereby certifies that the Borrower i not in default under any of the terms and provisions of '-' the above mentioned documents. CUPERTINO COMMUNITY SERVICES By: Its: a-2 7 EXHIBIT C NOTE Cupertino Community Services, a California nonprofit public benefit Corporation (the 'Borrower"), acknowledges itself indebted and for value received hereby promises to pay to the order of the City of Cupertino (the "Issuer"), or its successors and assigns, the sum of up to one million six hundred thousand dollars ($1,600,000), together with interest on the advanced and unpaid Outstanding Balance (as hereinafter defined)at the interest rate referred to below from October_, 2001 (the "Loan') until the Borrower's obligation to pay the Outstanding Balance shall be discharged. The Outstanding Balance shall mean the principal balance of the Loan which has been advanced by or on behalf of the Issuer under Section 3.4 of the Loan Agreement described below, and has not been repaid by the Borrower to the Issuer as of the date of calculation of the Outstanding Balance. This Note is issued to evidence the Loan by the Issuer to the Borrower and the obligation of the Borrower to · repay the same and shall be governed by and be payable in accordance with the terms and conditions of a Loan Agreement (the 'Loan Agreement"), dated as of October 1, 2001, between the IssUer and the Borrower pursuant to which Issuer has made the Loan. This Note, together with the Loan Agreement, have been assigned by the Issuer under the terms of an Indenture of Trust, dated as of October 1, 2001 (the 'Indenture"), by and between the Issuer and Cupertino National Bank (the 'Bondowner Representative") for the benefit of the owners of the Issuer's Uultifamily Housing Revenue Bonds (Heart of Cupe~no Project), Series 2001A. All payments on this Note shall be made by the Borrower to the Bondoweer Representative. The Outstanding Balance of the Loan shall be due and payable in its entirety on October 1, 2031. This Note shall bear interest at a of six and three eighths percent (6.375%) per annum. Monthly payments of principal and interest on the Loan shall be payable on the first business day of each month, commencing November 1, 2001, in an amount equal to $ The principal of this Note shall be subject to prepayment in full (i) upon the occurrence of an Event of Default under and as defined in the Loan Agreement, and (ii) from the proceeds of any insurance, maintained with respect to the development financed with the proceeds of the Loan, to the extent required to be used to prepay the Loan under the provisions of the Loan Agreement. The Borrower shall have the right to prepay all or any portion of the principal of this Note at any time, but only following thirty (30) days prior written notice to the Bondowner Representative and the Issuer, at a prepayment price equal to the principal to be prepaid plus accrued interest thereon to the date of prepayment, plus a prepayment premium fee (which shall be retained by the Bondowner Representative for its own account) equal to six (6) months' interest on the principal amount being prepaid. In the event the Borrower fails to make the timely payment of any monthly payment, and such payment remains unpaid for a period of ten (10) days subsequent to the established payment date, the Borrower shall pay to the Bondowner Representative interest on the then Outstanding Balance at a default rate (the 'Default Rate') equal to the interest rata then in effect under this Note plus five percent (5%). THIS NOTE IS FURTHER SECURED BY A DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING (THE 'DEED OF TRUST") MADE BY THE BORROWER, AS TRUSTOR, FOR THE BENEFIT OF THE ISSUER, AS BENEFICIARY, NAMING FIRST AMERICAN TITLE INSURANCE COMPANY AS TRUSTEE THEREUNDER, AND DATED AS OF SEPTEMBER 1, 2001. THE ISSUER HAS ASSIGNED ITS INTERESTS UNDER SAID DEED OF TRUST TO THE BONDOWNER REPRESENTATIVE. C-1 Should the Borrower agree to or actually sell, convey, transfer or dispose of the real property described in the Deed of Trust securing the Loan or any part of it, or any interest in it, other than permitted encumbrances, as described in the Loan Agreement, or upon the occurmnse of an Event of Default under and as defined in the Loan Agreement and the decision by the Bondowner Representative to accelerate the Loan, then all obligations secured by this Note may be declared due and payable, as provided in the Loan Agreement. All sums due hereunder shall be paid in lawful money of the United States of America. Interest shall be computed on the basis of a 360-day year comprised of twelve 30-day months. All payments made hereunder shall be credited first against unpaid late charges; the balance of each such payment next shall be credited against accrued and previously unpaid interest; and the balance of each such payment shall be credited against principal, and interest thereafter shall not accrue on the amount so credited to principal. The Borrower, for itself and its legal representatives, successors, and assigns expressly waives demand, notice of nonpayment, presentment for demand, presentment for the purpose of accelerating metudty, dishonor, notice of dishonor, protest, notice of protest, notice, nolJce of matunty, and diligence in collection. The Borrower agrees to pay all court costs an.d reasonable attomeys' fees if counsel is engaged to assist in the collection of this Note after a default hereunder if any action is commenced to construe or enforce the terms of this Note. Notwithstanding the foregoing, neither the officers or the directors of the Borrower shall be personally liable for the amounts owing under this Note or the Deed of Trust; and the Issuer's remedies in the event of a default under this Note shall be limited to those remedies set forth in the Loan Agreement end the commencement of foreclosure under the Deed of Trust and the exercise of the power of sale or other rights granted thereunder. C-2 IN WITNESS WHEREOF, Cupertino Community Services, a Califomia non-profit public benefit corporation, has caused this Note to be executed in its name and on its behalf all as of the. day of October, 2001. CUPERTINO COMMUNITY SERVICES, a California non-profit public benefit corporation By: Itst C-3 7- 9,2 Endorsement to Bondowner Representative Pay to the order of Cupertino National Bank, Bondowner Representative, without recourse. Dated: October_, 2001 CITY OF CUPERTINO By: Its: EXHIBIT D CONDITIONS TO DISBURSEMENT 1. CONDITIONS PRECEDENT TO EACH ADVANCE. Bondowner Representative's obligation to make the initial Advance and each subsequent Advance under this Agreement shall be subject to the fulfillment to Bondowner Representative's satisfaction of all of the conditions set forth in this Agreement and in the Loan Documents. 1.01 Special Conditions to Initial Advance. Refer to Development Cost Breakdown - Exhibit 2 attached hereto and made a part hereof. 1.02 Approval of Contractors, Subcontractors, and Materialmen. Bondowner Representative shall have approved a list of all contractors employed in connection with the construction of the Improvements, showing the name, address, and telephone number of each contractor, a general description of the nature of the work to be done, the labor and materials to be supplied, the names of materialmen, if known, and the approximate dollar value of the labor, work, or materials with respect to each contractor or materialman. Sondowner Representative shall have the right to communicate with any person to verify the facts disclosed by the list or by any application for any Advance, or for any other purpose. 1.03 Plans, Specifications, and Permits. Bondowner Representative shall have received and accepted a complete set of written Plans and Specifications setting forth all Improvements for the Project, and Borrower shall have fumished to Bondowner Representative copies of all permits and requisite approvals of any governmental body necessary for the construction and use of the Development. 1.04 Architecture and Construction Contracts. Borrower shall have fumished in form and substance satisfactory to Bondowner Representative an executed copy of the Architecture Contract and an executed copy of the Construction Contract. 1.05 Related and Support Documents. Borrower shall provide to Bondowner Representative in form satisfactory to Bondowner Representative all Loan Documents. 1.06 Budget and Schedule of Estimated Advances. Bondowner Representative shall have approved detailed budget and cash flow projections of total Development costs and a schedule of the estimated amount and time of disbursements of each Advance. 1.07 Borrower's Authorization. Borrower shall have provided in form and substance satisfactory to Bondowner Representative propedy certified resolutions, duly authorizing the consummation of the Loan and duly authorizing the execution and delivery of this Agreement, the Note and the Loan Documents. In addition, Borrower shall have provided such other resolutions, authorizations, documents, opinions and instruments as Bondowner Representative or its counsel, in their sole discretion, may require. 1.08 Bond. If requested by Bondowner Representative, Borrower shall have furnished a performance and payment bond in an amount equal to 100% of the amount of the Consb'uction Contract, as -. well as a materialmen's and mechanics' payment bond. With such ridem and supplements as Bondowner Representative may require, each in form and substance satisfactory to Bondowner Representative, naming the General Contractor as principal and Bondowner Representative as an additional obligee. Any required bonds and the contracts which they cover must be duly recorded or filed in accordance with California Civil Code Section 3235, if required by Bondowner Representative. 1.09 Appraisal. An appraisal shall be prepared for the Property, at Borrower's expense, which in form and substance shall be satisfactory to Bondowner Representative, in Bondowner Representative's sole discretion, including applicable regulatory requirements. 1.t0 Plans and Specifications. If requested by' aondowner Representative, Borrower shall have assigned to Bondowner Representative on Bondowner Representative's forms the Plans and Specifications for the Development. 1.11 Envimnmeetal Report. Borrower shall have fumished to Bondowner Representative, at Borrower's expense, an environmental report and certJticate on the Property in form and substance satisfactory to Bondowner Representative, prepared by an engineer or other expert satisfactory to Bondowner Representative's stating that the Property complies with all applicable provisions and requirements of Section 2.3 (concerning Hazardous Substances) of this Agreement. 1.12 Soil Report. If. requested by Bondowner Representative, Borrower shall have fumished to Bondowner Representative, at Borrower's expenses, a soil report for the Property in form and substance satisfactory to Bondowner Representative, prepared by a registered engineer -- satisfactory to Bondowner Representative stating that the Property is free from soil or other geological conditions that would preclude its use or development as contemplated without extra expense for precautionary, corrective or remedial measures. 1.13 Survey. If requested by Bondowner Representative, Borrower shall have fumished to Bondowner Representative a suwey of recent date, prepared and certified by a qualified surveyor and providing that the Improvements, if constructed in accordance with the Plans and Specifications, shall lie wholly within the boundaries of the Development without encroachment or violation of any zoning ordinances, building codas or regulations, or setback requirements, together with such other information as Bondowner Representative in its sole discretion may require. · 1.14 Zoning. Borrower shall have fumished evidence satisfactory to Bondowner Representative that the property on which the Development is located is duly and validly zoned for the construction, maintenance, and operation of the Development. 1.15 Title Insurance. Borrower shall have provided to Bondownor Representative an ALTA Bondowner Representative's extended coverage policy of title insurance with such endorsements as Bondowner Representative may require, issued by a title insurance company acceptable to Bondowner Representative and in a form, amount, and content satisfactory to Bondowner. Representative, insuring or agreeing to insure that Bondowner Representative's security agreement or other security document on the.Pmpen*y is or will be upon reconJation a valid first lien on the Property frae and clear of all defects, liens, encumbrances, and exceptions except those as specifically accepted by Bondowner Representative in writing. If requested by _. Bondowner Representative, Borrower shall provide to Bondowoer Representative, at Borrower's expense, a foundation endorsement (CLTA 102.5 or ils equivalent) to the title policy upon the completion of each foundation for the Improvements, showing no encroachments, and upon D-2 7' completion an endomement, which insures the lien-free completion of the Improvements (CLTA 101 series, as required by Bondowner Representative). Specifically, Borrower shall provide to Bondowner Representative the following title insurance endomements: Modified 100, 101.2, 102.5, 111.5, 116 [maybe others]. 1.16 Insurance. Unless waived by Bondo.wner Representative in writing, Borrower shall have delivered to Bondowner Representative the following insurance policies or evidence thereof: (a) an all risks course of construction insurance policy (builder's risk), with extended coverage covering the Improvements issued in an amount and by a company acceptable to Rondowner Representative, containing a loss payable or other endorsement satisfactory to Bondowner Representative insudng Bondowner Representative as mortgagee, together with such other endorsements as may be required by Bondowner Representative, including stipulations that coverages will not be cancelled or diminished without at least (10) days prior written notice to Bondowner Representative; (b) owners and General Contractor general liability insurance, public liability and workmen's compensation insurance; (c) flood insurance if required by Bondowner Representative or applicable law; and (d) all other insurance required by this Agreement or by the Loan Documents. 1.17 Workers' Compensation Coverage. Provide to Bondowner Representative proof of the General Contractor's compliance with all applicable workers' compensation laws and regulations with regard to all work performed on the Development. 1.18 Payment of Fees and Expenses. Borrower shall have paid to Bondowner Representative all fees, charges, and other expenses which are then due and payable as specified in this Agreement or any Related Document. 1.19 Satisfactory Construction. All work usually done at the stage of construction for which' disbursement is requested shall have been done in a good and workmanlike manner and all materials and fixtures usually furnished and installed at that stage of construction shall have been furnished and installed, all in compliance with the Plans and Specifications. Borrower shall also have furnished to Bondowner Representative such proofs es Bondowoer Representative may require to establish the progress of the work, compliance with applicable laws, freedom of the Property from liens, and the basis for the requested disbursement. 1.20 Certification. Borrower shall have fumished to Bondowner Representative a certification by an engineer, amhitect, or other qualified inspector acceptable to Bondowner Representative that the construction of the Improvements has complied and will continue to comply with all applicable statutes, ordinances, codes, regulations, and similar requirements. 1.21 Lien Waivers. Borrower shall have obtained and attached to each application for an Advance, including the Advance to cover final payment to the General Contractor, executed acknowledgments of payments of all sums due and releases of mechanic's and materialmen's liens, satisfactory to Bondowner Representative, from any party having lien rights, which acknowledgments of payment and releases of liens shall cover all work, labor, equipment, materials done, supplied, performed, or fumished prior to such application for an Advance. 1.22 No Event of Default. There shall not exist at the time of any Advance a condition which would constitute an Event of Default under this Agreement or under any Related Document. 2. DISBURSEMENT OF LOAN FUNDS. The following provisions relate to the disbursement of funds from the Program Fund and any Borrower's funds held by Boedowner Representative [3-3 2.01 Application for Advances. Borrower shall apply for Advances from the Program Fund according to the following disbursement schedule: Refer to Disbursement Schedule - Exhibit I attached hereto and made a part hereof. Each application shall be stated on a standard AIA payment request form or other form approved by Bondowner Representative, executed by BorTower, and supported by such evidence as Bondowner Representative shall reasonably require. Each application shall specify the portion of such Advance to be funded from Loan proceeds and the portion to be funded from Borrower's funds or other sources. Borrower shall apply only for disbursement with respect to work actually done by the General Conlractor and for materials and equipment actually incorporated into the Development. Each application for an Advance shall be deemed a certification of Borrower that as of the date of such application, all representations and warranties contained in the Agreement are true and correct, and that Borrower is in compliance with all of the provisions of this Agreement. 2.02 Loan to Value. Unless waived by Bondowner Representative in writing, the ratio of the amount of the Loan to the Value of the Property as completed shall not exceed 50.000%. 2.03 Payments. At the sole option of Bondowner Representative, Advances may be paid in the joint names of Borrower and the General Contractor, subcontractor(s), or supplier(s) in payment of sums due under the Construction Contract. At its sole option, Bondowner Representative may directly pay the General Contractor and any subcontractors or other parties the sums due under the Construction Contract. Borrower appoints Bondowner Representative as its attorney-in-fact to make such payments. This power shall be deemed coupled with an interest, shall be irrevocable, *-' and shall survive an Event of Default under this Agreement. 2.04 Developmented Cost Overruns. If Bondowner Representative at any time determines in its sole discretion that the amount of in the Program Fund, together with the unfunded portJon of any subordinate financings previously approved by Bondowner Representative, is insufficient, or will be insufficient, to complete fully and to pay for the Development, then within ten (10) days after receipt of a written request from Bondowner Representative, Borrower shall deposit in the Program Fund an amount equal to the deficiency as determined by Bondowoer Representative. The judgment and determination of Bondowner Representative under this section shall be final and conclusive. Any such amounts deposited by Borrower shall be disbursed prior to any Loan proceeds. 2.05 Final Payment to General Contractor. Upon completion of the Development and fulfillment of the Construction Contract to the satisfaction of Bondowner Representative and provided sufficient Loan funds are available, Bondowner Representative shall make an Advance to cover the final payment due to the General Contractor upon delivery to Bondowner Representative of endorsements to the ALTA title insurance policy following the posting of the completion notice, as provided under applicable law. Construction shall not be deemed complete for purposes of final disbursement unless and until Bondowner Representative shall have received all of the following: (1) Evidence satisfactory to Bondowner Representative that all work under the Construction Contract requiring inspection by any govemmental authority with jurisdiction has been duly inspected and approved by such authority, that a cartJficate of occupancy has been _ issued, and that all parties performing work have been paid, or will be paid, for such work; (2) A certification by an engineer, architect, or other qualified inspector acceptable to Bondowner Representative that the Improvements have been completed substantially in accordance with the Plans and Specifications and the Construction Contract, that direct connection has been made to all utilities set forth in the Plans and Specifications, and that the Development is ready for occupancy; and (3) Acceptance of the completed Improvements by Bondowoer Repmsentaive and Borrower. Notwithstanding any other provision of this Agreement to the contrary, Bondowner Representative may retain up to 10.000% of the original Loan amount to be paid as the final payment to the General Contractor upon satisfaction of the conditions set forth above. 2.06 Construction Default. If Borrower fails in any respect to comply with the provisions of this Agreement or if construction ceases before completion regardless of the mason, Bondowner Representative, at its option, may refuse to make further Advances, may accelerate the indebtedness under the terms of the Note, and without thereby impairing any of its rights, Powers, or privileges, may enter into possession of the construction site and perform or cause to be performed any and all work and labor necessary to complete the Improvements, substantially in accordance with the Plans and Specifications. 2.07 Damage or Destruction. If any of the Collateral or Improvements is damaged or destroyed by casualty of any nature, within sixty (60) days thereafter Borrower shall restore the Collateral and Improvements to the condition in which they were before such damage or destruction with funds other than those in the Program Fund. Bondowner Representative shall not be obligated to make disbursements under this Agreement until such restoration has been accomplished, 2.08 Adequate Security. When any event occurs that Bondowner Representative determines may endanger completion of the Development or the fulfillment of any condition or covenant in this Agreement, Bondowner Representative may require Borrower to furnish, within ten (10) days after delivery of a written request, adequate security to eliminate, reduce, or indemnify Bondowner Representative against, such danger. In addition, upon such occurrence, Bondowner Representative in its sole discretion may advance funds or agree to undertake to advance funds to any party to eliminate, reduce, or indemnify Bondowoer Representative against, such danger or to complete the Development. All sums paid by Bondowner Representative pursuant to such agreements or undertakings shall be for Borrower's account and shall be without prejudice to Borrower's rights, if any, to receive such funds from the party to whom paid. All sums expanded by Bondowoer Representative in the exemise of its option to complete the Development shall be payable to Bondowner Representative on demand together with interest from the date of the Advance at the rate applicable to the Loan. In addition, any Advance of funds under this Agreement, including without limitation direct disbursements to the General Contractor or other parties in payment of sums due under the Construction Contract, shall be deemed to have been expended by or on behalf of Borrower and to have been secured by the Dc=~d of Trust and the Fire District Deed of Trust. 3. CESSATION OF ADVANCES. Bondowoer Representative shall have no obligation to make Loan Advances or to disburse Loan proceeds if: (A) Borrower is in default under the terms of this Agreement or any of the Loan Documents or any other agreement that Borrower has with Bondowner Representative; (B) Borrower becomes incompetent or becomes insolvent, files a petition in bankruptcy or similar proceedings, D-5 7-?8 --- or is adjudged a bankrupt; or (C) there occum a material adverse change in Borrower's financial condition or in the value of any Collateral securing any Loan. 4. LIMITATION OF RESPONSIBILITY. The making of any Advance by Bondowner Representative shall not constitute or be interpreted as either (A) an approval or acceptance by Bondowner Representative of the work done through the date of the Advance, or (B) a representation or Indemnity by Bondowner Representative to any party against any deficiency or defect in the work or against any breach of any contract. Inspections and approvals of the Plans and Specifications, the Improvements, the workmanship and materials used in the Improvements, and the exemise of any other right of inspection, approval, or inquiu granted to Bondowner Representative in this Agreement are acknowledged to be solely for the protection of Bondowner Representative's interests, and under no cimumstances shall they be construed to impose any responsibility or liability of any nature whatsoever on Bondowoer Representative to any party. Neither Borrower nor any contractor, subcontractor, materialman, laborer, or any other person shall rely, or have any right to rely, upon Bondowner Representative's determination of the appropriateness of any Advance. No disbursement or approval by Bondowner Representative shall constitute a representation by Bondowner Representative as to the nature of the Development, its cons'auction, or its intended use for Borrower or for any other parson, nor shall it constitute an indemnity by Bondoweer Representative to Borrower or to any other person against any deficiency or defects in the Development or against any breach of any contract. 5. AFFIRMATIVE COVENANTS. Borrower covenants and agrees with Bondowner Representative that, so long as this Agreement remains in effect, Borrower will: 5.01 Notices of Claims and Utigation. Promptly inform Bondowner Representative in writing of (1) all -- mmerial adverse changes in Borrower's financial condition, and (2) all existing and all threatened litigation, claims, investigations, administrative proceedings or similar actions affecting Borrower or any guarantor which could materially affect the financial condition of Borrower. 5.02 Financial Records. Maintain its books and records and records in accordance with GAAP, applied on a consistent basis, and permit Bondowner Representative to examine and audit Borrower's books and records at all reasonable times. 5.03 Financial Statements. Furnish Bondowner Representative' with such financial statements and other related information at such frequencies, and in such detail as Bondowner Representative may reasonably request. 5.04 Additional Information. Fumish such additional information and statements, lists of assets and liabilities, agings of receivables and payables, inventory schedules, budgets, forecasts, tax returns, and other reports with respect to Borrower's financial condition and business operations as Bondoweer Representative may request from time to time. 5.05 Other Agreements. Comply with all terms and conditions of all other agreements, whether not or hereafter existing, between Borrower and any other party and notify Bondowner Representative immediately in writing of any default in connection wilh any offer such agreements. 5.06 Insurance. Maintain fire and other risk insurance, public liability insurance, and such other insurance as Bondowoer Representative may require with respect to Borrower's properUes and ._ operations, in form, amounts, coverages and with insurance companies acceptable to Bondoweer Representative. Borrower, upon request of Bondowoer Representative, will deliver to Bondowner Representative from time to time the policies or certificates of insurance in form satisfactory to Bondowner Representative, including stipulations that coverages will not be cancelled or diminished without at least ten (10) days pdor wdtten notice to Bondowner Representative. Each insurance policy also shall include an endorsement providing that coverage in favor of Bondowner Representative will not be impaired in any way by any act, omission or default of Borrower or any other person. In connection with all policies covedng assets in which Bondowner Representative holds or is offered a security interest for the Loan, Borrower will provide Bondowner Representative with such Bondowner Representative's loss payable or other endorsements as Bondowner Representative may require. 5.07 Insurance Reports. Fumish to Bondowner Representative, upon request of Bondowner Representative, reports on each existing insurance policy showing such information as Bondowner Representative may reasonably request, including without limitation the following: (1) the name of the insurer; (2) the risks insured; (3) the amount of the policy; (4) the properties insured; (5) the then current property values on the basis of which insurance has been obtained, and the manner of determining those values; and (6) the expiration date of the policy. In addition, upon request of Bondowner Representative (however not more often than annually). Borrower will have an independent appraiser satisfactory to Bondowner Representative determine, as applicable, the actual cash value or replacement cost of any Collateral. The cost of such appraisal shall be paid by Borrower. 5.08 Loan Fees, Charges and Expenses. Whether or not the Development is completed, Borrower also shall pay upon demand all out-of-pocket expenses incurred by Bondowner Representative in connection with the preparation of loan documents and the making of the Loan, including, without limitation, all closing costs, fees, and disbursements, all expenses of Bondowner Representative's legal counsel, and all title examination fees, title insurance premiums, appraisal fees, survey costs, required fees, inspection fees and filing and recording fees. 5.09 Loan Proceeds. Use the Loan funds solely for payment of bills and expenses directly related to the Development. 5.10 Taxes, Charges and Liens. Pay and discharge when due all of its indebtedness and obligations, including without limitation all assessments, taxes, governmental charges, levies and liens, of every kind and nature, imposed upon Borrower or its properties, income, or profits, prior to the date on which penalties would attach, and all lawful claims that, if unpaid, might become a lien or charge upon any of Borrower's properties, income, or profits. 5.11 Performance. Perform and comply, in a timely manner, with all terms, conditions, and provisions set forth in this Agreement, in the Loan Documents, and in all other instruments and agreements relating to the Development. Borrower shall notify Bondowner Representative immediately in wdting of any default in connection with any agreement. 5.12 Inspection. Permit employees or agent of Bondowoer Represer~',~6ve at any reasonable time to inspect any and all Collateral for the Loan and to examine or audit Borrower's books, accounts, and records and to make copies and memoranda of Borrower's books, accounts, and records. If Borrower now or at any time hereafter maintains any records (including without limitation computer generated records and computer software programs for the generation of such records) in the possession of a third party, Borrower, upon request of Bondowner Representative, shall notify such party to permit Bondowner Representative free access to such records at all reasonable times and to provide Bondowcer Representative with copies of any records it may request, all at Borrower's expense. D-7 -7-10~ 5.13 Compliance Certificates. Unless waived in writing by Bondowner Representative, provide Bondowner Representative at least annually, with a certificate executed by Bonower's chief financial officer, or other officer or person acceptable to Bondowner Representative, certifying that the representations and warranties set forth in this Agreement are true and cor;ect as of the date of the certificate and further certifying that, as of the date of the certificate, no Event of Default exists under this Agreement or any 'of the other Loan Documents. 5.t4 Construction of the Development. Commence construction of the Development no later than October_, 2001, and cause the Improvements to be constructed and equipped in a diligent and orderly manner and in strict accordance with the Plans and Specifications approved by Bondowner Representative, the Conslmction Contract, and'all applicable laws, ordinances, codes, regulations, and rights of adjoining or concurrent property owners. Borrower agrees to complete the Development for purposes of final payment to the General Contractor on or before Mamh 1, 2003, regardless of the reason for any delay. 5.15 Defects. Upon demand of Bondowner Representative, promptly correct any defect in the Improvements or any departure from the Plans and Specifications not approved by Bondowner Representative in writing before further work shall be done upon the portion of the Improvements affected. 5.16 Development Claims and Litigation. Promptly inform Bondowner Representative of (1) all material adverse changes in the financial condition of the General Contractor, (2) any litigation and claims, actual or threatened, affecting the Development or the General Contractor, which could - materially affect the successful completion of the Development or the ability of the General Contractor to complete the Development as agreed; and (3) any condition or event which constitutes a breach or default under any of the Loan Documents or any conbact related to the Development. 5.17 Payment of Claims and Removal of Liens. (1) Cause all claims for labor done and materials and services fumished in connection with the Improvements to be fully paid and discharged in a timely manner, (2) diligently file or procure the filing of a valid notice of completion of the Improvements, or such comparable document as may be permitted under applicable lien laws, (3) diligently file or procure the filing of a notice of cessation, or such comparable document as may be permitted under applicable lien laws, upon the happening of cessation of labor on the Improvements for a continuous period of thirty (30) days or more, and (4) take all reasonable steps necessary to remove all claims of liens against the Collateral, the Improvements or any part of the Collateral or Improvements, or any rights or interests appurtenant to the Collateral or Improvements. Upon Bondowner Representa'dve's request Borrower shall make such demands or claims upon or against laborers, materialmen, subcontractors, or other persons who have furnished or claim to have fumished labor, services, or materials in connection with the Improvements, which demands or claims shall under the laws of the State of California require diligent ~_~sertions of lien claims upon penalty of loss or waiver thereof. Borrower shall, within ten (10) days after the filing of any claim of lien that is disputed or contested by Borrower, record or cause the General Conic'actor for the construction of the Improvements to record in the appropriate govemmental office, a surety bond pursuant to Califomia law sufficient to release the claim of lien and, within five (5) days of Bondowoer Representative's demand, make suitable provision by _ deposit of funds with Bondowner Representative in an amount satisfactory to Bondowner Representative or by bend satisfactory fo Bondowner Representative for the possibility that the contest will be unsuccessful. If Borrower fails to remove any lien on the Collateral or D-8 Improvements or provide a bond or deposit pursuant to this provision, Bondowner Representative may pay such lien, or may contest the validity of the lien, and Borrower shall pay all costs and expenses of such contest, including Bondowner Representative's reasonable attorneys' fees. 5.18 Taxes and Claims. Pay and discharge when due all of Borrower's indebtedness, obligations, and claims that, if unpaid, might become a lien or charge upon the Collateral or Improvements; provided, however, that Borrower shall not be required to pay and discharge any such indebtedness, obligation, or claim so long as (1) its legality shall be contested in good faith by appropriate proceedings, (2) the indebtedness, obligation, or claim does not become alien or charge upon the Collateral or Improvements, and (3) Borrower shall have established on its books adequate reserves with respect to the amount contested in accordance with GAAP. If the indebtedness, obligation, or claim does beCome a lien or charge upon the Collateral or Improvements, Borrower shall remove the lien or charge as provided in the preceding paragraph. 5.19 Environmental Studies. Promptly conduct and complete, at Borrower's expense, all such investigations, studies, samplings and testings as may be requested by Bondowner Representative or any governmental authority relative to any substance, or any waste or bi- product of any substance defined as toxic or a hazardous substance under applicable federal, state, or local law, rule, regulation, order or directive, at or affecting any property or any facility owned, leased or used by Borrower. 5.20 Additional Assurances. Make, execute and deliver to Bondowner Representative such promissory notes, mortgages, deeds of trust, security agreements, assignments, financing statements, instruments, documents and other agreements as Bondowner Representative or its attorneys may reasonably request to evidence and secure the Loan and to perfect all Security Interests in the Collateral and Improvements. 6. BONDOWNER REPRESENTATIVE'S EXPENDITURES. If any action or proceeding is commenced that would materially affect Bondowner Representative's interest in the Collateral or if Borrower fails to comply with any provision of this Agreement or any Loan Documents, including but not limited to Borrower's failure to discharge or pay when due any amounts Borrower is required to discharge or pay under this Agreement or any Loan Documents, Bondowner Representative on Borrower's behalf may (but shall not be obligated to) take any action that Bondowner Representative deems appropriate, including but not limited to discharging or paying all taxes, liens, secunty interests, encumbrances and other claims, at any time levied or placed on any Collateral and paying all costs for insuring, maintaining and preserving any Collateral. NI such expenditures incurred or paid by Bondowner Representative for such purposes will then bear interest at the rate charged under the Note from the date incurred or paid by Bondowner Representative to the date of repayment by Borrower. All such expenses will become a part of the indebtedness and, at Bondowner Representative's option, will (A) be payable on demand; (B) be added to the balance of the Note and be apportioned among and be payable with any installment payments to become due during either (1) the term of any applicable insurance policy; or (2) the remaining term of the Note; or (C) be treated as a balloon payment which will be due and payable at the Nota's maturity. 7. NEGATIVE COVENANTS. Borrower covenants and agrees with Bondowner Representative that while this Agreement is in effect, Borrower shall not, without the pdor written consent of Bondowner Represent~dve: 7.0t Indebtedness and Mens. (1) Except for the subordinate loans and grants approved by Bondowner Representative prior to the date of this Agreement and' indebtedness to Bondowner Representative contemplated by this Agreement, create, incur or assuroe indebtedness for borrowed rooney, including capital leases, (2) sell, transfer, mortgage, assign, pledge, lease, grant D-9 a security interest in, or encumber any of Borrower's assets (except as allowed as Permitted Liens), or (3) sell with recourse any of Borrower's accounts, except to aondowner Representative. 7.02 Continuity of Operations. (1) Engage in any business activities substantially different than those in which Borrower is presently engaged or (2) cease operations, liquidate, merge, transfer, acquire or consolidate with any other entity, change its name, change the state of its incorporation, dissolve or transfer or sell Collateral out of the ordinary course of business. 7.03 Loans, Acqutsltlons and Guaranties. (li Loan, invest in or advance money or assets (2) pumhase, create or acquire any interest in any other enterprise or entity, or (3) incur any obligation as surety or guarantor other than in the ordinary course of business. 7.04 Modification of Contract. Make or permit to be made any modification of the Construction Contract. 8. GENERAL DEVELOPMENT PROVISIONS. the following provisions relate to the construction and completion of the Development: 8.01 Change Orders. All requests for changes in the Plans and Specifications, other than minor changes involving no extra cost, must be in writing, signed by Borrower and the architect, and delivered to Bondowner Representative for its approval. Borrower will not permit the performance of any work pursuant to any change order or modification of the Construction Contract or any subcontract without the written approval of Bondowner Representative. Borrower will obtain any required permits or authorizations from governmental authorities having jurisdiction before · - approving or requesting a new change order. 8.02 Purchase of Materials; Conditional Sales Contracts. No materials, equipment, fixtures, or articles of personal property placed in or incorporated into the Development shall be pumhased or installed under any Secudty Agreement or other agreement whereby the seller reserves or purports to reserve title or the right of removal of repossession, or the dght to consider such items as personal property after their incorporation into the Development, unless otherwise authorized by Bondowoer Representative in writing. 8.03 Bondowner Representative's Right of Entry and Inspection. Bondowoer Representative and its.agents shall have at all times the dght of entry and free access to the Property and the right to inspect all work done, labor performed, and materials fumlshed with respect to me Development. Bondowner Representative shall have unrestricted access to and the right fo copy all records, accounting books, contracts, subcontracts, bills, statements, vouchers, and supperting documents of Borrower relating in any way to the Development. 8.04 Bondowner Representative's Right to Stop Work, If Bondowner Representative in good faith determines that any work or materials do not conform to the approved Plans and Specifications or sound building practices, or otherwise depart from any of the requirements of this Agreement, Bondowner Representative may require the work to be stopped and withhold disbursements until the matter is con'ected. In such event, Borrower will promp0y correct the work to Bondowner Representative's satisfaction. No such action by Bondowner Representative will affect Borrower's obligation to complete the Improvements on or before the Completion Date. Boodowner _ Representative is under no duty to supen~ise or inspect the construction or examine any books and records. Any inspection or examination by Bondowner Representative is for the sole purpose of protecting Bondowner Representative's security and presenting Bondowner Representative's rights under this Agreement. No default of Borrower will. be waived by any inspection by Bondowner Representative. In no event will any inspection by Bondowner Representative be a representation that there has been or will be compliance with the Plans and Specifications or that the construction is free from defective materials or workmanship. 8.05 Indemnity. Borrower shall indemnify and hold Bondowner Representative harmless from any and all claims asserted against Bondowner Representative or the Property by any person, entity, or governmental body, or arising out of or in connection with the Property, Improvements, or Development. Bondowner Representative shall be entitled to appear in any proceedings to defend against such claims, and all costs and expenses, attomeys' fees incurred by Bondowner Representative in connection with such defense shall be paid by Borrower to Bondowner Representative. Bondowner Representative Shall, in its sole discretion, be entitled to settle or compromise any asserted claims against it, and such settlement shall be binding upon Borrower for purposes of this indemnification. All amounts paid by Bondowner Representative under this paragraph shall be secured by Bondowner Representative's security agreement or Deed of Trust, if any, on the Development shall be deemed an additional principal Advance under the Loan, payable upon demand, and shall bear interest at the rets applicable to the Loan. 8.06 Publicity. Bondowner Representative may display a sign at the construction site informing the public that Bondowner Representative is the construction lender for the Development. Bondowoer Representative may obtain other publicity in connection with the Development through press releases and participation in ground-breaking and opening ceremonies and similar events. 8.07 Actions. Bondowner Representative shall have the fight to commence, appear in, or defend any action or proceeding purporting to affect the rights, duties, or liabilities of the parties to this Agreement, or the disbursement of funds from the Program Fund. In connection with this fight, Bondowner Representative may incur and pay reasonable costs, expenses and attorneys' fees. Borrower covenants to pay to Bondowner Representative on demand all such expenses, together with interest from the date Bondowner Representative incurs the expense at the rats specified in the Note, and Bondowner Representative is authorized to disburse funds from the Program Fund for such purposes. 9. ADDITIONAL DOCUMENTS. Bon'ower shall provide Bondowner Representative with the following additional documents: 9.01 Corporate Resolution. Borrower has provided or will provide Bondowner Representative with a certified copy of resolutions properly adopted by Borrower's Board of Directors, and certified by Borrower's corporate secretary, assistant secretary, or authorized officer, under which Borrower's Board of Directors authorized one or more designated officers or employees to execute this Agreement, the Note, the Dcc:J of Trust and any and all Security Agreements directly or indirectly securing repayment of the same, and to consummate the borrowings and other transactions as contemplated under this Agreement, and to consent to the remedies following any default by Borrower as provided in this Agreement and in any other Loan Documents. 9.02 Opinion of Counsel. Borrower has provided or will provide Bondowoer Representative with an opinion of Borrower's counsel certifying to and that: (1) Borrower's Note, the Dccd of Trust, this Agreement and the other Loan Documents constitute valid and binding obligations on Borrower's part that are enforceable in accordance with their respective terms; (2) Borrower is validly existing and in good standing; (3) Bonower has autho~ty to enter into this Agreement and to consummate ..-- the transactions contemplated under this Agreement; and (4) such other matters as may have been requested by Bondowner Representative or by Bondowner Representative's counsel. 10. EXHIBIT "1" - DISBURSEMENT SCHEDULE. An exhibit, titled 'Exhibit '1" - Disbursement Schedule," is attached to this Agreement and by this reference is mede a part of this Agreement just as if all the provisions, terms and conditions of the Exhibit hed been fully set forth in this Agreement. 11. EXHIBIT "2" - DEVELOPMENT COST BREAKDOWN. An exhibit, titled 'Exhibit '2" - Development Cost Breakdown,' is attached to this Agreement and by this reference is mede a part of this Agreement just as if all the provisions, terms and conditions of the Exhibit had been fully set forth in this Agreement. 12. EXHIBIT "3" - CONSTRUCTION LOAN TRANSFER OF FUNDS. An exhibit, titled "Exhibit "3" - Construction Loan Transfer of Funds," is attached to this Agreement and by this reference is made a part of this Agreement just as if all the provisions, terms and conditions of the Exhibit had been fully set forth in this Agreement. 13. EXHIBIT "4" - REQUEST FOR FUNDS. An exhibit, titled "Exhibit '4' - Request for Funds" is attached to this Agreement and by this reference is made a part of this Agreement just as if all the previsions, terms and conditions of the Exhibit had been fully set forth in this Agreement. 14. DEFINITIONS. The following capitalized terms shall have the following meanings: 4.01 Advance. The word 'Advance' means a disbursement of funds from the Program Fund made, or to be made, to Borrower or on Borrower's behalf on a line of credit or multiple advance basis under the terms and conditions of this Agreement. 14.02 Agreement. The word 'Agreement' means the Loan Agreement to which this Exhibit D - Conditions to Disbursement is attached, as this Agreement may be amended or modified from time to time, together with all exhibits and schedules attached to this Agreement from time to time. 14.03 Completion Date. The words 'Completion Date' mean March 1, 2003. 14.04 Contractor. The word "Contractor' means Contractor's name, the general contractor for the Development. 14.05 Development. The word 'Development' means the construction project as described in the 'Development Description" section of this Agreement. 14.06 GAAP. The word "GAAP' means generally accepted accounting principles. 14.07 Indebtedness. The word 'indebtedness' means the indebtedness evidenced by the Note or Loan Documents, including all principal and interest together with all other indebtedness and costs and expenses for which Borrower is responsible under this Agreement or under any of the Loan Documents. 14.08 Permitted Liens. The words "Permitted Liens" mean (1) liens and security interests securing indebtedness owed by Borrower to Bondowner Representative; (2) liens for taxes, assessments, _.. or similar charges either not yet due or being contested in good faith; (3) liens of materialmen, mechanics, warehousemen, or carriers, or other like liens arising in the onJinary course of business and securing obligations which are not yet delinquent; (4) purchase money liens or D.12 -7.1o5 pumhase money security interests upon or in any properly acquired or held by Borrower in the ordinary course of business to secure indebtedness outstanding on the date of this Agreement or permitted to be incurred under the paragraph of this Agreement titled 'Indebtedness and Liens"; (5) liens and security interests which, as of the date of this Agreement, have been disclosed to and approved by the Bondowner Representative in wdting in an aggregate amount not to exceed $ : and (6) those liens and secudty interests which in the aggregate constitute an immaterial and insignificant monetary amount with respect to the net value of Borrower's assets. 14.09 Security Agreement. The words 'Security Agreement' mean and include without limitation any agreements, promises, covenants, arrangements, understandings or other agreements, whether created by law, contract, or otherwise, evidencing, goveming, representing, or creating a Security Interest. 14.10 Security Interest. The words 'Security Interest' mean, without limitation, any and all types of collateral security, present and future, whether in the form of a lien, charge, encumbrance, mortgage, deed of trust, security deed, assignment, pledge, crop pledge, chattel mortgage, collateral chattel mortgage, chattel trust, factor's lien, equipment trust, conditional sale, trust receipt, lien or title retention contract, lease or consignment intended as a security device, or any other security or lien interest whatsoever whether created by law, contract, or otherwise. 14.11 Value. The word 'Value' means such amount or worth as defined and determined by Bondowner Representative in its sole discretion unless agreed to the contrary by Bondowner Reprasentetive in writing. D-13 "7 DISBURSEMENT SCHEDULE (RESIDENTIAL) (Exhibit 1) Loan No. THE LOAN PROCEEDS IN THE AMOUNT OF $1,600,000 PLUS BORROWER'S FUNDS IN THE AMOUNT OF $ AGGREGATING $ SHALL BE DISBURSED AS FOLLOWS: I. INITIAL DISBURSEMENT. Bondowner Representative is hereby authorized and' directed to make Initial Disbursements for the purposes, in the amounts, and to the parsons indicated: 1. As a non-refundable Loan Fee to Bondowner Representative, the sum of $ 2. Non-refundable Appraisal, Flood Search and Misc. fees to Bondowner Representative, the sum of $ 3. Legal fees and other closing costs, the sum of $ 4. Net fund the full payment of Bank loan no. in the principal amount $.__ plus interest in the approximate amount of $. (interest to ) thereon. 5. Wire land advance in the approximate amount of $. directly to Old Republic Title Company. I1. SUBSEQUENT DISBURSEMENTS. The remainder of the Loan Proceeds and Borrower's Funds in the sum aggregate of $ plus funds not disbursed as provided for in Section I hereof or less any additional funds disbursed as provided for in Section I hereof, shall be disbursed in conformity with (i) the Agreement, and the following A. Once a month, or as agreed upon by Bondowner Representative following commencement of construction of the Improvements, Contractor shall submit to Borrower, a Draw Request showing the estimated cost of labor performed on and materials incorporated into the Improvements, a pro-rata portion of the General Contractor's profit and that pro rata portion of overhead of General Contractor at~butable to the construction of the Improvements. Each such Draw Request shall show the portion of. the Advance to be funded fi'om Loan proceeds and the portion to be funded from Borrower's funds or other sources. The original of such Draw Request, ce~r~J true and correct by the General Contractor and approved by Borrower, shall be submitted to Bondowner Representative for payment. (i) Upon verification of the accuracy of the Draw Request by Bondowner Representative, inspaction of the Proparty and Improvements and payment of an inspection fee not to exceed $150 par inspection, Bondowner Representative shall disburse to General Contractor, Borrower or subcorfa'actors, laborers and materialmen (at Bondowner Representative's option as to whom and the amounts payments are made) 90% of the amount of the respective approved Draw Request but in no event shall the aggregate of such payments (together with the initial Advance) exceed the sum of $1,440,000 except as provided for by Borrower and accompanied by funds for the payment thereof. The final disbursement in the sum of $160,000 funded previously for retentions shall bo mede upon compliance with the prevision entitled Final D-14 '7- I0 '7 Payment to General Contractor. At Bondowner Representative's option, the amount of the final disbursement shall equal the difference between the amount specified in the Note, the Agreement and the aggregate amounts previously disbursed. However, if the total amount expended to complete the Development is less than the total projected costs of the Development as specified in the final cost breakdown, the difference shall not be disbursed and the maximum principal amount stated in the Note shall be deemed to be reduced by the amount of that difference. (ii) All funds disbursed as provided above shall be immediately used to pay bills/invoices and charges for labor, materials and other costs as specified above with regard to the Improvements and until such bills are paid in full, the funds shall not be used for any other purpose. (iii) Construction costs will be disbursed Upon receipt of a payment request submitted on an AIA payment request form or other form approved by Bondowner Representative signed by Borrower and General Contractor. B. The sum of $ (the interest reserve) shall be disbursed from time to time on the interest payment date specified in the Note by the disbursing by Bondowner Representative of sufficient amounts to pay interest due on the Note. If the amount remaining in the interest reserve is at any time insufficient to pay in full the next estimated installment of interest due under the Note, Borrower shall remit the difference to Bondowner Representative on or before the due date of such installment. When said sum has been completely disbursed, Borrower shall make interest payments directly to Bondowner Representative in accordance with the terms of the Note. C. Upon receipt of a draw request for 'Soft Costs' (Soft Cost to be defined as services and/or expenses not subject to mechanics liens) signed by Borrower, accompanied by paid receipts for items represented by the respective draw request and upon Bondowner Representative's verification of accuracy of the amount and items reflected in the draw request so submitted, the sum of $ shall be disbursed in amounts and for the purposes specified on the Supplement to Disbursement Schedule attached hereto and mede a part hereof. Each such draw request shall specify the portion of the Advance to be funded from Loan proceeds and the portion to be funded from Borrower's funds or other sources. III, AUTHORIZED SIGNERS. Borrower authorizes either or to sign all Draw Requests and other documents in connection with the administration of the Loan. Borrower represents and warrants to Bondowner Representative that the following signatures are specimen signatures of the persons named in the preceding sentence: D-15 '7 - 08 THIS DISBURSEMENT SCHEDULE IS EXECUTED BY BORROWER AND BONDOWNER REPRESENTATIVE AS OF THIS __ DAY OF ,2001. BORROWER BONDOWNER REPRESENTATIVE CUPERTINO COMMUNITY SERVICES CUPERTINO NATIONAL BANK By: By: Title: TitJe: FOR ACCOUNTING PURPOSES ONLY: MAKE DISBURSEMENTS UNDER II HEREOF TO: By Crediting DDA Account At 0-16 SUPPLEMENT TO DISBURSEMENT SCHEDULE (additional soft costs) LAND TOTAL BOND PROCEEDS PROPERTY TAXES $ $ TITLE & RECORDING FEES PERMITS & FEES $ $ LEGAL & INSURANCE $ $ SITE INSPECTIONS $ $ SOFT COST CONTINGENCY $ $ TOTAL $ [ADD OR DELETE ITEMS AS APPROPRIATE] D-17 -- DEVELOPMENT COST BREAKDOWN (Exhibit 2) LAND TOTAL BOND PROCEEDS Site Acquisition $ $ CONSTRUCTION: Demolition $ $ Bonded Site Improvements $ " $ Direct Construction Cost $ $ Hard Cost Contingency $ $ Total Construction Cost $ $ INTEREST RESERVE: Interest Reserve $ $ Interest Reserve Contingency $ $ Total Interest Reserve $ $ SOFT COST: Appraisal & Environmental $ $ Property Taxes $ $ Title & Recording Fees $ $ Permits & Fees $ $ Legal & Insurance $ $ Site Inspection $ $ Loan Fee $ $ Soft Cost Contingency $ $ Total Soft Cost $ $ TOTAL LOAN AMOUNT $ $ D-18 CUPERTINO NATIONAL BANK Construction Loan Transfer of Funds (Exhibit 3) Date: Reallocation/'rmnsfer No.: Submitted w/Draw Request No. Borrower: CUPERTINO COMMUNITY SERVICES Development: HEART OF CUPERTINO Address:10114 AND 10214 Vista Drive, Cupertino, California 95014 Pursuant to the Agreement, the undemigned hereby requests the following budgets be mallocated as follows: LINE TRANSFER DOLLAR TRANSFER ITEM NO. FROM AMOUNT TO TOTAL In order to induce Bondowner Representative to effect the changes, I/we certify that the work listed hereinabove has been completed in full according to the plans and specifications. In addition, the work has been inspected and has been paid in full both as to labor and/or materials. If I/we are transferring funds from any line item which is not complete, I/we have attached documentation which shall verify the remaining funds are sufficient to cover all residual balance of work. If no contingency funds are available, a check has been included to cover any shortfall. Borrower: D-19 -7- / ! ~ Quint & Thimmig LLP 8/27/01 9110/01 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: QUINT & THIMMIG LLP One Embarcadero Center, Suite 2420 San Francisco, California 94111 Attention: Paul J. Thimmig, Esq. REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS by and between the CITY OF CUPERTINO and CUPERTINO COMMUNITY SERVICES Dated as of October 1, 2001 relating to: City of Cupertino Multifamily Housing Revenue Bonds (Heart of Cupertino Project), Series 2001A TABLE OF CONTENTS Section 1. Definitions and interpretation ............................................................................................................................ 1 Section 2, Borrower Representations and Covenants ....................................................................................................... 4 Section 3. Residential Rental Property .................................................................................. i ............................................ 5 Section 4. Very Low Income Tenants ................................................................................................................................. 7 Section 5. Filings and Notifications .................................................................................................................................... 9 Section 6. Modification of Covenants ................................................................................................................................. 9 Section 7. Indemnification .................................................................................................................................................. 9 Section 8. Consideration .................................................................................................................................................. 10 Section 9. Reliance .......................................................................................................................................................... 10 Section 10. Sale or Transfer of the Developmant ....................... .': ..................................................................................... 10 Section 11. Term ................................................................................................................................................................ 11 Section 12. Covenants to Run W'~h the Land .................................................................................................................... 11 Section 13. Burden and Benefit .......................................................................................................................................... 11 Section '14. Uniformity; Common Plan ............................................................................................................................... 12 Section 15. Enforcement .................................................................................................................................................... 12 Section 16. Recording and Filing ....................................................................................................................................... 12 Section 17. Limited Liability ................................................................................................................................................ 12 Section 18. Governing Law ................................................................................................................................................ 12 Section 19. Amendments ................................................................................................................................................... 12 Section 20. Notice .............................................................................................................................................................. 13 Section 21. Severability ...................................................................................................................................................... 13 Section 22. Multiple Counterparts ...................................................................................................................................... 13 Section 23. Payment of issuer Expenses ........................................................................................................................... 13 Section 24. Third Party Beneficiary .................................................................................................................................... 13 EXHIBIT A- LEGAL DESCRIPTION OF LAND EXHIBIT B - COMPLETION CERTIFICATE EXHIBIT C - CERTIFICATE AS TO COMMENCEMENT OF QUALIFIED DEVELOPMENT PERIOD - REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS THIS REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS (the "Regulatory Agreement"), dated as of October 1, 2001, is by and between the City of Cupertino, a public body, corporate and politic, organized and existing under the constitution and laws of the State of Califomia (together with any successor to its fights, duties and obligations, the "Issuer'), and CupellJno Community Services, a Califomia nonprofit public benefit corporation (the "Borrower"), as owner of the land described in Exhibit A attached hereto. WITNE$$ETH: WHEREAS, the Legislature of the State of Califomia enacted Chapter 8 of Part 5 of Division 31 of the Health and Safety Cede of the State of California (the 'Act') to authorize cities to issue bonds and make loans of the proceeds thereof to nonpro~ organizations exempt from federal income taxation under Sac'don 501(c)(3) of the Internal Revenue Code of 1986, as amended (the 'Code') to finance multifamily rental housing for families and individuals of Iow and very Iow income; and WHEREAS, on September 17, 2001, the Issuer adopted-a resolution (the "Resolution") authorizing the issuance of its City of Cupertino Multifamily Housing Revenue Bonds (Heart of Cupertino Project), Series 2001A in a ._. principal amount of not to exceed $1,600,000 (the "Bonds"), and a loan of the proceeds of the Bonds to the Borrower (the "Loan"), and in connection with the financing of a portion of the costs of the acquisition and construction by the Borrower of the residential rental facility to consist of 24 units of multifamily residential rental housing to be located on Vista Drive at Stevens Creek Boulevard in the City of Cupertino, California (the 'Development'); and WHEREAS, the Issuer and the Borrower have entered into a Loan Agreement, dated the date hereof (the "Loan Agreement"), providing for the terms and conditions under which the Issuer will make the Loan to the Borrower to finance the Development; and WHEREAS, the Act requires that the use and operation of the Development must be restricted in certain respects and in order to ensure that the Development will be used and operated in accordance with the Act and the Code, the Issuer and the Borrower have determined to enter into this Regulatory Agreement in order to set forth certain terms and conditions relating to the operation of the Development. NOW, THEREFORE, in consideration of the mutual covenants and undertakings set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Issuer and the Borrower hereby agree as follows: Section 1. Definitions and Interoratation. When used herein, the following capitalized terms shall have the respective meanings assigned to them in this Section 1 unless the context in which they are used clearly requires otherwise: 'Act' - Chapter 8 of Part 5 of Division 31 (commencing with Section 52100) of the Health and Safety Code of the State of Califomia as now in effect and as it may from time to time hereafter he amended or supplemented. "Adjusted Income" - The adjusted income of a person (together with the adjusted income of all persons of the age of 18 yearn or older who intend to reside with such person in one residential unit) as calculated in the -1- "7- II 5 manner prescribed pumuant to Section 8 of the United States Housing Act of 1937, or, if said Section 8 is terminated, as prescribed pursuant to said Section 8 immediately prior to its termination or as otherwise required under Section 142 of the Code and the Act. "Affiliated Party" - (1) a person whose relationship with the Borrower would result in a disallowance of losses under Section 267 or 707(b) of the Code, or (2) a Person who together with the Borrower are members of the same controlled group of corporations (as defined in Section 1563(a) of the Code, except that "more than 50 pement" shall be substituted for'at least 80 percent" each place it appears therein), (3) a partnership and each of its partners (and their spouses and minor children) whose relationship with the BorTower would result in a disallowance of losses under Section 267 or 707(b) of the Coda and (4) an S corporation and each of its shareholders (and their spouses and minor children) whose relationship with the Borrower would result in a disallowance of losses under Section 267 or 707(b) of the Code. "Area" - The metropolitan statistical area in which the Development is located. "Bondowner Representative" - The entity acting as "Bondowner Representative" under the Indenture, initially being Cupertino National Bank. "Bonds" - means the City of Cupertino Muitifamily Housing Revenue Bonds (Heart of Cupertino Project), Series 2001A, issued and outstanding under the Indenture. · "Borrower" - Cupertino Community Services or its successors or assigns. 'Closing Date"- October ,2001, being the date on which the Loan was made. "Code" - The Internal Revenue Code of 1986, as in effect on the date the Loan is made or (except as otherwise reterenced herein) as it may be amended to apply to obligations issued on the date Loon is made, together with applicable temporary and final regulations promulgated, and applicable official public guidance published, under the Code. "Completion Certificate" - The cerlJficata of completion of the Development required to be delivered to the Issuer by the Borrower pursuant to Section 2(i) of this.Regulatory Agreement, which shall be substantially in the form attached to this Regulatory Agreement as Exhibit B. 'Completion Date" - The date of completion of the acquisition and construction of the Development, as that data shall be certified as provided in Section 2(i) of this Regulatory Agreement. "County" - The County of Santa Clare, California. 'Deed of Trust" - The Deed of Trust, Assignment of Rents and Leases, Security Agreement and Fixture Filing, executed by the Borrower and granting a security interest in the Development to the deed trustee for the benefit of the Issuer to secure the Borrower's obligations under the Loan Agreement. 'Development" - The Development Facilities and the Development Site. "Development Costs' - means, to the extent authorized by the Act, the Code and the Regulations, any and all costs and expenses incurred by the Borrower with respect to the acquisition, financing, construction and/or operation of the Development, whether paid or incurred prior to or alter the Closing Date, including, without limitation, costs for the acquisition of propen'y, the cost of consultant, accounting and legal services, appraisal costs, other expenses necessary or incident to determining the feasibility of the Development, and administrative expenses, and interest on the Loan. "Development Facilities" - The buildings, structures and other improvements constructed on the Development Site and financed in whole or in part with the proceeds of the Loan, and all fixtures and other property owned by the Borrower and located on, or used in connection with, such buildings, structures and other improvements. The Development Facilities do not include any facilities constructed on the Development Site that are used for office or commemial purposes, and that are not financed with proceeds of the Loan. "Development Site" -' The parcel or parcels of real property described in Exhibit "A", which is attached hereto and by this reference incorporated herein, and all rights and appurtenances thereunto appertaining. "Indenture" - means the Indenture of Trust, dated as of October 1, 2001, between the Issuer and the Bondowner Representative, as Bondowner Representative, as in effect on the Closing Date or thereafter amended in accordance with its terms. 'Inducement Date'- October 1, 2001. 'Issue Date' - October_, 2001. 'Issuer" - The City of Cupertino, or its successors or assigns. 'Loan" - The loan made by the Issuer to the Borrower under the Loan Agreement to provide finandng for the Development. 'Loan Agreement" - The Loan Agreement entered into by the Borrower and the Issuer pursuant to which the Issuer will make the Loan. "Low Income Tenants'- Individuals or families with an Adjusted Income which does not exceed 80 percent of the Median Income for the Area, adjusted for household size. 'Low Income Units" - The dwelling units in the Development designated for occupancy by Low Income Tenants pursuant to Section 4(a) of this Regulatory Agreement. "Median Income for the Area" - The median income for the Area as most recently determined by lhe City Clerk of Treasury (which determination is required by Code Section 142(d)(2)(B) to be consistent with determinations of area median gross income under Section 8 of the United States Housing Act of 1937, or, if such program is terminated, under such program as in affect immediately before such termination). 'Note' - The promissory note executed by Borrower evidencing the Loan. 'Qualified Development Costs' - means costs of the Development paid or incurred following the dale which is 60 days prior to the Inducement Date; provided that if any pertion of the Development is being conslmcted by an "affiliated party" (whether as a general contractor or a subcontractor), 'Quali~ Development Costs" shall include only (a) the actual out-of-pocket costs incurred by such affiliated par in constructing the Development (or any portion thereof}, (b) any reasonable fees for supervisory services actually rendered by the affiliated party, and (c) any overhead expenses incun~! by the affiliated paty that are directly atlfibutable to the work performed on the ._ Development, and shall not include, for example, intercompany profits resulting from members of an affiliated group (within the meaning of Section 1504 of the Code) pa'dcipaling in the conslmctlon of the Development or payments received by such affiliated paRty due to early completion of the Development (or any podion thereof). 'Qualified Development Pedod" - The period beginning on the date on which tan percent (10%) of the units in the Development am first occupied, and ending on the later of (a) the date which is 30 years after the date on which at least fifty pement (50%) of the residential units in the Development are first occupied, (b) the date on which any assistance provided with respect to the Development under Section 8 of the United States Housing Act of 1937 terminates, or (c) the date on which the Bonds are paid in full. 'Regulations" - The income tax regulations promulgatad by the United States Department of the Treasury pursuant to the Code from time to time. "Regulatory Agreement" - This Regulatory Agreement and Declaration of Restrictive Covenants, together with any amendments hereto or supplements hereof. 'State" - State of California. "Very Low Income Tenants" - Individuals or families with an Adjustad Income which does not exceed 50 · percent of the Median Income for the Area, adjustad for household size. 'Very Low Income Units" - The dwelling units in the Development designated for occupancy by Very Low Income Tenants pursuant to Section 4(a) of this Regulatory Agreement, Unless the context cleady requires othenvise, as used in this Regulatory Agreement, words of the masculine, feminine or neuter gender shall be construed to include each other gender when appropriate and words of the singular number shall be construed to include the plural number, and vice versa, when appropriata. This Regulatory Agreement and all the terms and provisions hereof shall be construed to effectuate the puqx)ses set forth herein and to sustain the validity hereof. The defined terms used in the preamble and recitals of this Regulatory Agreement have been included for convenience of reference only, and the meaning, construction and interpretation of all defined tarms shall be determined by reference to this Section 1 notwithstanding any contrary definition in the preamble or recitals hereof. The titles and headings of the sections of this Regulatory Agreement have been inserted for convenience of reference only, and are not to be considered a part hereof and shall not in any way modify or restrict any of the terms or provisions hereof or be considered or given any effect in construing this Regulatory Agreement or any provisions hereof or in ascertaining intent, if any question of intant shall arise. Section 2. Borrower Reoresentations and Covenants. The Borrower hereby represents, as of the date hereof, and covenants, warrants and agrees as follows: (a) The statements made in the various certificates delivered by the Borrower to the Issuer on the date the Loan was made are true and correct. (b) The Borrower (and any person related to it within the meaning of Section 147(a)(2) of the Code) will not take or omit to take, as is applicable, any action if such action or omission would in any way cause the proceeds of the Loan to be applied in a manner contrary to the requirements of the Loan Agreement or this Regulatory Agreement. (c) It will not knowingly take or permit, or omit to take or cause to be taken, as is appropriate, any action that would adversely affect the exclusion from gross income for federal income tax purposes or the exemption from California personal income taxation of the intarest on the Bonds and, if it should take or .4- permit, or omit to take or cause to be taken, any such action, it will take all lawful actions necessary to rescind or corzect such actions or omissions promptly upon obtaining knowledge thereof. (d) it will take such action or actions as may be necessary, in the ~'~tten opinion of Bond Counsel · to the Issuer filed with the Issuer and the Bonower, to comply fully with the Act, the Code and all applicable rules, rulings, policies, procedures, Regulations or other official statements promulgated, proposed or made by the Department of the Treasury or the Intamal Revenue Service to the extent necessary to maintain the exclusion from gross income for federal income tax purposes of interest on the Bonds. (e) The Borrower has incurred a substantial binding obligation to expend proceeds of the Loan pursuant to which the Borrower is obligated to expend at least five pement (5%) of the maximum principal amount of the Loan. (f) The Borrower will proceed with due diligence to complete the construction of the Development and the full expenditure of the proceeds of the Loan. The Borrower reasonably expects to complete the acquisition and construction of the Development and to expend the full amount of the Loan for Development Costs by October 1, 2001. (g) The Borrower's reasonable expectations respecting the total expenditure of the proceeds of the Loan have been accurately set forth in a certificate of the Borrower deliven.~l on the Closing Date. At all times, the aggregate disbursements of the proceeds of the Loan will have been applied to pay or to reimburse the Borrower for the payment of Qualified Development Costs (as defined in the Loan Agreement) in an amount equal to ninety-seven percent (97%) or more of such disbursements. (h) The Borrower will not take or omit to take, as is applicable, any action if such action or omission would in any way cause the proceeds from the Loan to be applied in a manner contrary to the requirements of the Loan Agreement, this Regulatory Agreement, the Act or the Code. (i) On the Completion Date, the Borrower will submit to the Issuer a duly executed and completed Completion Certificate. (j) On the date on which fifty percent (50%) of the units in the Development are first rented to tenants, the Borrower will submit to the Issuer a duly executed and completed Certificate as to Commencement of Qualified Development Period in the form of Exhibit C hereto. Section 3. Residential Rental Pro;)ertv. The Borrower hereby acknowledges and agrees that the Development will be owned, managed and operalecl as a residential rental facility until the expiration of the Qualified Development Period. To that end, and for the term of this Regulatory Agreement, the Borrower hereby represents, as of the date hereof, and covenants, warrants and agrees as follows: (a) The Development is being financed for the purpose of providing multifamily residential rental property, and the Borrower shall own, manage and operate the Development as a Development to provide multifamily residential rental property comprised of a building or structure or several interrelated buildings or structures, together with any functionally related and suben]inata facilities, and no other facilities, in accordance with applicable previsions of the Act, Section 145 of the Code and the applicable Regulations and in accordance with such requirements as may be imposed thereby on the Development from time to time. (b) No part of the Development will at any time be owned by a cooperative housing corporation, nor shall the Borrower take any steps in cennection with a convereion to such ownership or uses. Other -s- 7 -'1 / q than obtaining a final subdivision map on the Development and a Final Subdivision Public Report from the California Department of Real Estate, the Borrower shall not take any steps in connection with a conversion · of the Development to a condominium ownership except with the prior wdttan approving opinion of Bond Counsel that the interest on the Bonds will not become taxable thereby under Section 103 of the Code. (c) All of the dwelling units will be available for rental on a continuous basis to members of the general public and the Borrower will not give preference to any particular class or group in renting the dwelling units in the Development, except to the extent that a percentage of the dwelling units are required to be leased or rented to Very Low Income Tenants or Low Income Tenants hereunder, or otherwise to the extent required to comply with other agreements that provide for the rental of units in the Development for persons or families of designated incomes. (d) The Development Site consists of a parcel or parcels that are contiguous except for the interposition of a road, street or stream, and all of the Development Facilities will comprise a si.ngle geographically and functionally integrated Development for residential rental property, as evidenced by the ownership, management, accounting and operation of the Development. (e) The Borrower shall not discriminate on the basis of race, creed, color, sex, source of income (e.g. AFDC, SSI), physical disability, age, national origin or marital status in the rental, lease, use or occupancy of the Development or in connection with the employment or application for employment of persons for the operation and management of the Development. (f) None of the dwelling units in the Development will at any time be utilized on a transient basis, or will ever be used as a hotel, motel, dormitory, fratemity house, sorority house, rooming house, nursing home, hospital, sanitarium, rest home, retirement house or trailer court or park. (g) No dwelling unit in the Development shall be occupied by the Borrower. Notwithstanding the foregoing, if the Development contain five or more dwelling units, this subsection shall not be conslnJed to prohibit occupancy of dwelling units by one or more resident managers or maintenance personnel any of whom may be the Borrower, provided that the number of such managers or maintenance personnel is not unreasonable given industry standards in the area for the number of dwelling units in the Development. (h) The Borrower will use due diligence to complete the construction of the Development and reasonably expects to fully expend the authorized principal amount of the Loan within three years of the date of the Loan Agreement. (i) NI of the dwelling units in the Development will be similarly constructed, and each dwelling unit in the Development will contain facilities for living, sleeping, eating, cooking and sanitation for a single person or a family which are complete, separate and distinct from other dwelling units in the Development and includes a sleeping area, bathing and sanitation facilities and cooking facilities equipped with a cooking range, refrigerator and sink. (j) None of the dwelling units in the Development will at any time be used on a transient basis and the Borrower will not rent any of the units for a period of less than thirty (30) consecutive days, and none of the dwelling units in the Development will at any time be leased or ranted for use as a hotel, motel, dormitory, fraternity house, sorority house, rooming house, hospital, nursing home, sanitarium, rest home or trailer court or park. (k) No part of the Development will at any time be owned or used by a cooperative housing corporation. Other than filing a condominium map and a final subdivision map on the Development and -6- -7- 170 obtaining a Final Subdivision Public Report form the California Department of Real Estate, the Borrower shall not take any steps in connection with a conversion of the Development to condominium ownership during the Qualified Development Period. (I) The Borrower will not sell dwelling units within the Development. Section 4. Very Low Income Tenants. Pursuant to the requirements of the Act, the Borrower hereby represents, as of the Closing Date, and warrants, covenants and agrees as follows: (a) During the Qualified Development Period: (1) Not less than ten percent (10%) Of the completed units in the Development shall be designated as Very Low income Units and shall be continuously occupied or held vacant and available for occupancy by Very Low Income Tenants, and not less than an additional ten percent (!0%) of the completed units in the Development shall be designated as Low Income Units and shall be continuously occupied or held vacant and available for occupancy by Low Income Tenants. All of the Very Low Income Units shall be generally distributed in terms of location and number of bedrooms throughout the Development. The Very Low Income Units shall be of comparable quality and offer a range of sizes and number of bedrooms comparable to those units which are available to other tenants. (2) The monthly rant paid by the persons occupying the Very Low Income Units (excluding any supplemental rental assistance from the Slate, the federal government, or any other public agency to those persons or on behalf of those units) shall not exceed ona-twelfth of '-' the amount obtained by multiplying 30% times 50% of the Median Income for the Area, as adjusted by the assumed household size set forth below of each such Very Low Income Unit. Assumed Number of Persons in Household Size of Units for Affordable Units Studio 1 One bedroom 2 Two bedrooms 3 Three bedrooms 4 Four bedrooms 5 Five or mom bedrooms As determined by HUD (3) Very Low Income Units shall remain available on a priority basis for occupancy by Very Low Income Tenants. A unit occupied by a Very Low Income Tenant who at the commencement of the occupancy is a Very Low Income Tenant shall be treated as occupied by a Very Low Income Tenant until (i) a recertification of such tenant's income in accordance with Section 4(c) below demonstmtas that such tenant no longer qualifies as a Very Low Income Tenant and (ii) thereafter any residential unit of comparable or smaller size in the Development is occupied by a new resident other than a Very Low Income Tenant. Moreover, a unit previously occupied by a Very Low Income Tenant and then vacated shall be considered occupied by a Very Low Income Tenant until reoccupled, other than for a temporary period, at which time the character of the unit shall be mdetermined. In no event shall such temporary period exceed thirty- one (31) days. -7- 7-1.31 (4) Low Income Units shall remain available on a pdodty basis for occupancy by Low Income Tenants. A unit occupied by a Low Income Tenant who at the commencement of the occupancy is a Low Income Tenant shall be treated as occupied by a Low Income Tenant until (i) a recertification of such tenant's income in accordance with Section 4(c) below demonstrates that such tenant no longer qualifies as a Low Income Tenant and (ii) thereafter any residential unit of comparable or smaller size in the Development is occupied by a new resident other than a Low Income Tenant. Moreover, a unit previously occupied by a Low Income Tenant and then vacated shall be considered occupied by a Low Income Tenant until reoccupied, other than for a temporary period, at which time the character of the unit shall be redetermined, in no event shall such temporary period exceed thirty-one (31) days. (b) Immediately prior to a Very Low Income Tenant's occupancy of a Very Low Income Unit, the Borrower will obtain and maintain on file an Income Computation and Certification form (in substantially the form set forth in Exhibit A to the Loan Agreement) from each Very Low Income Tenant occupying a Very Low income Unit, dated immediately prior to the initial occupancy of such Very Low Income Tenant in the Development. Immediately prior to a Low Income Tenant's occupancy of a Low Income Unit, the Borrower will obtain and maintain on file an Income Computation and Certification form (in substantially the form set forth in Exhibit A to the Loan Agreement) from each Low Income Tenant occupying a Low Income Unit, dated immediately prior to the initial occupancy of such Low Income Tenant in the Development. In addition, the Borrower will provide such fudher information as may be required in the future by the State of California, the Issuer, the Code and by the Act, as the same may be amended from time to time, or in such other form and manner as may be required by applicable rules, rulings, policies, procedures or other official statements now or hereafter promulgated, proposed or made by the State of Califomia or the Intemal Revenue Service. The Borrower shall verify that the income provided by an applicant is accurate by taking the following steps as a part of the verification process: (1) obtain a federal income tax ratum for the most recent tax year, (2) obtain a written verification of income and employment from applicant's current employer, (3) if an applicant is unemployed or did not file a tax return for the previous calendar year, obtain other verification of such applicant's income satisfactory to the Issuer or (4) such other information as may be requested by the Issuer. (c) The Borrower will maintain complete and accurate records pertaining to the Very Low Income Units and the Low Income Units, and will permit any duly authorized representative of the Issuer to inspect the books and records of the Borrower pertaining to the Development, including those records pertaining to the occupancy of the Very Low Income Units and the Low Income Units. (d) The Borrower will prepare and submit to the Issuer, within thirty days after each anniversary of the date hereof, a Certificate of Continuing Program Compliance in the form attached as Exhibit B to the Loan Agreement executed by the Borrower stating (i) the percentage of the dwelling units of the Development which were occupied or deemed occupied, pursuant to subsection (a) hereof, by Very Low Income Tenants and Low Income Tenants during such period, and (ii) that either (A) no unremedied default has occuned under this Regulatory Agreement or (B) a default has occurred, in which event the certificate shall describe the nature of the default and set forth the measures being taken by the Borrower to remedy such default. (e) The Borrower shall accept as tenants on the same basis as all other prospective tenants, persons who are recipients of federal cartificates or vouchers for rent subsidies pursuant to the existing program under Section 8 of the United States Housing Act of 1937, or its successor. The Borrower shall not apply selection criteria to Section 8 serUficate or voucher holders that are more burdensome than criteria applied to all other prospective tenants and the Borrower shall not refuse to rent to any Very Low Income Tenant or Low Income Tenant on the basis of household size as long as such household size does not exceed two persons for a one bedroom unit, four persons for a two bedroom unit and six persons for a three bedroom unit. The Borrower shall not collect any additional fees or payments from a Very Low Income Tenant or Low Income Tenant except security deposits or other deposits required of all tenants and food allowances, if any. The Borrower shall not collect secudty deposits or other deposits from Section 8 certificate or voucher holders in excess of that allowed under the Section 8 Program. The Bon'ower shall not discriminate against Very Low income Tenant or Low Income Tenant applicants on the basis of source of income (i.e., AFDC or SSI), and the Borrower shall consider a prospective tenant's previous rent history of at least one year as evidence of the ability to pay the applicable rent (ability to pay shall be demonstrated if a Very Low Income Tenant or Low Income Tenant can show that the same percentage or more of the tenant's income has been paid for rent in the past as will be required to be paid for the rent applicable to the Very Low Income Unit or Low Income Unit, as applicable, to be occupied provided that such Very Low Income Tenant's or Low Income Tenant's expenses have not materially increased). (f) Each lease pertaining to a Very Low Income Unit shall contain a provision to the effect that the Borrower has relied on the income certification and supporting information supplied by the Very Low Income Tenant in determining qualification for occupancy of the Very Low Income Unit, and that any material misstatement in such certification (whether or not intentional) will be cause for immediate termination of such lease. Each lease pertaining to a Low Income Unit shall contain a provision to the effect that the Borrower has relied on the income certification and supporting information supplied by the Low income Tenant in determining qualification for occupancy of the Low Income Unit, and that any material misstatement in such certification (whether or not intentional) will be cause for immediate termination of such lease. Section 5. Filin~ls and Notifications. The Borrower hereby represents, as of the date hereof, and warrants, covenants and agrees that it will file of record such documents and take such other steps as are necessary in order to insure that the requirements and restrictions of this Regulatory Agreement will be binding upon all owners of the Development, including, but not limited to, the execution and recordation of this Regulatory Agreement in the real property records of the County. The Borrower hereby covenants to include the requirements and restrictions contained in this Regulatory Agreement in any document (other than the Deed of Trust, and in any leases to individual occupants of units in the Development) transferring any interest in the Development to another person to the end that such transferee has notice of, and is bound by, such restrictions, and to obtain the agreement ~m any t~ansferee to abide by all requirements and restrictions of this Regulatory Agreement. Section 6. Modification of Covenants. The Borrower and the Issuer hereby agree as follows: (a) To the extent any amendments to the Act or the Code shall impose requirements upon the ownership or operation of the Development more restrictive than th(me imposed by this Regulatory Agreement which must be complied with in order to meet the requirements of the Act and the Code, this Regulatory Agreement shall be deemed to be automatically amended to impose such additional or more restrictive requirements. (b) The Borrower and the Issuer shall execute, deliver and, if applicable, file of record any and all documents and insln~ments, necessary to effectuate the intent of this Section 6. Section 7. Indemnification. The Borrower shall indemnify, hold harmless and defend the Issuer and its _ officers, members, directors, officials, employees and any agents of the Issuer and each of them against all loss, costs, damages, expenses, suits, judgments, actions and liabilities of wi'mtever nature (including, without limitation, attomeys' fees, litigation and court costs, amounts paid in settlement, and amounts paid to discharge judgments) directly or indirectly resulting from or arising out of or related to (a) the acquisition, construction, installation, operation, use, occupancy, maintenance, or ownership of the Development and any related office or commemial facilities in the buildings comprising the Development Facilities (including compliance with laws, ordinances and rules and regulations of public authorities relating thereto); or (b) any written statements or representations with respect to the Borrower or the Development made or given to the Issuer, by the Borrower or any of its directors, officers, agents or employees, including, but not limited to, statements or representations of facts or financial information. The Borrower also shall pay and discharge and shall indemnify and hold harmless the Issuer from (x) any lien or charge upon payments by the Borrower to the Issuer hereunder or under the Loan Agreement and (y) any taxes (including, without limitation, all ad valorem taxes and sales taxes), assessments, impositions and other charges in respect of any portion of the Development. If any such claim is asserted, or any such lien or charge upon payments, or any such taxes, assessments, impositions or other charges, are sought to be imposed, the Issuer shall give prompt notice to the Borrower, and the Borrower shall have"the duty to assume, and will assume, the defense thereof, including the employment of counsel selected by the indemnified party and the payment of all expenses related thereto, with full power to litigate, compromise or settle the same in consultation with the Issuer; provided that the Issuer shall have the right to review and approve or disapprove any such compromise or settlement, and provided further that the Issuer shall act reasonably in connection therewith. Nothing in this paragraph shall obligate the Borrower for any claims, obligations or liabilities attributable directly to the gross negligence or willful misconduct of the Issuer. In addition thereto, the Borrower will pay upon demand all of the fees and expenses paid or incurred by the Issuer in enfoming the provisions hereof. Section 8. Consideration. The Issuer has made the Loan to provide funds to finance the Development, all for the purpose, among others, of inducing the Borrower to operate the Development. In consideration of the making of the Loan by the Issuer, the Borrower has entered into this Regulatory Agreement and has agreed to restdct the uses to which the Development can be put on the terms and conditions set forth herein. Section 9. Reliance. In performing their duties and obligations hereunder, the Issuer may rely upon statements and certificates of the Borrower and Very Low Income Tenants, and upon audits of the books and records of the Borrower pertaining to the Development. In addition, the Issuer may consult with counsel, and the opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by the Issuer hereunder in good faith and in conformity with such opinion. Section 10. Sale or Transfer of the Development. The Borrower intends to hold the Development for its own account, has no current plans to sell, transfer or otherwise dispose of lhe Development, and hereby covenants and agrees not to sell, transfer or otherwise dispose of the Development, or any portion thereof (other than for individual tenant use as contemplated hereunder), without obtaining the written prior consent of the Issuer which consent shall be given in the reasonable discretion of the Issuer. Prior to giving consent, and in order for the consent to be effective, the issuer will require, among other things, receipt of (i) reasonable evidence satisfactory to the Issuer that the Borrower's purchaser or transferee has assumed in writing and in full, the Borrower's duties and obligations under this Regulatory Agreement, (ii) reasonable evidence satisfactory to the Issuer that such purchaser or assignee is: (A) a governmental entity (other than the United States) or (B) a corporation described in section 501(c)(3) of the Code and that the ownership and operation of the Development will be in furtherance of the exempt purposes of the purchaser or assignee and will not result in unrelated trade or business income of the purchaser or assignee, (iii) an opinion of counsel of the transferee that the transferee has duly assumed the obligations of the Borrower under this Regulatory Agreement and that such obligations and this Regulatory Agreement are binding on the transferee, (iv) evidence acceptable fo the Issuer that either (A) the purchaser or assignee has experience in the ownership, operation and management of rental housing developments such as the Development without any record of material violations of discrimination restzictions or other state or federal laws or regulations applicable to such developments, or (B) the purchaser or assignee agrees to retain a property management firm with the experience -. and record described in subparagraph (A) above or if the pumhaser or assignee does not have management experience, the Issuer will have the right but not the duty to provide on-site management, and (v) no event of default exists under the Loan Agreement. It is hereby expressly Stipulated and agreed that any sale, transfer or other disposition of the Development in violation of this Section 10 shall be null, void and without effect, shall cause a reversion of title to the Borrower, shall be ineffective to relieve the Borrower of its obligations under this Regulatory Agreement, and shall be subject to the previsions of the Deed of Trust. Not less than 20 days prior to consummating any sale, transfer or disposition of any interest in the Development, the Borrower shall deliver to the Issuer a notice in writing explaining the nature of the proposed transfer. Section 11. Term. Subject to the following paragraph of this Section 11, this Regulatory Agreement and all and several of the terms hereof shall become effective upon ils execution and delivery and shall remain in full fome and effect from the date hereof until the end of the Qualified Development Period, it being expressly agreed and understood that the provisions hereof ara intended to survive the Loan Agreement and the Note. Notwithstanding any other provisions of this Regulatory Agreement to the contrary, this entire Regulatory Agreement, or any of the provisions or sections hereof, may be terminated upon agreement by the Issuer and the Borrower subject to compliance with any of the provisions contained in this Regulatory Agreement only if there shall have been received an opinion of counsel that such termination will not adversely affect the exclusion from gross income for federal income tax purposes or the exemption from State personal income taxation of the interest on the Bonds and will otherwise not violate any provision of the Act. The terms of this Regulatory Agreement to the contrary notwithstanding, this Regulatory Agreement, and all and several of the terms hereof, shall terminate and be of no further forsa and.effect in the event of a foreclosure or delivery of a deed in lieu of foreclosure whereby a third party or the Bondowner Representative shall take possession of the Development or involuntary non-compliance with the provisions of this Regulatory Agreement *- caused by fire, seizure, requisition, change in a federal law or an action of a federal agency after the date hereof which prevents the Issuer from enfoming the provisions hereof or condemnation or a similar event and the payment in full of the Note and the Bonds within a reasonable period thereafter, provided, however, that the preceding provisions of this sentence shall cease to apply and the restrictions contained herein shall be reinstated if, at any time subsequent to the termination of such provisions as the result of the foreclosure or the delivery of a deed in lieu of foreclosure or a similar event, the Borrower or any related person to it (within the meaning of Section 1.103-10(e) of the Regulations) obtains an ownership interest in the Development for Federal income tax purposes. Upon the termination of the terms of this Regulatory Agreement, the parties hereto agree to execute, deliver and record · appropriate instruments of release and discharge of the terms hereof; provided, however, that the execution and delivery of such instruments shall not be necessary or a prerequisite to the termination of this Regulatory Agreement in accordance with its terms. Section 12. Covenants to Run W'~h the Land. The Borrower hereby subjects the Development (including the Development Site) to the covenants, reservations and restrictions set forth in this Regulatory Agreement. The Issuer and the Borrower hereby declare their express intent that the covenants, reservations and restrictions set forth herein shall be deemed covenants running with the land and shall pass to and be binding upon the Borrower's successors in title to the Development; provided, however, that on the termination of this Regulatory Agreement said covenants, reservations and restrictions shall expire. Each and every contract, deed or other instrument hereafter executed covering or conveying the Development or any portion thereof shall conclusively be held to have been executed, delivered and accepted subject to such covenants, reservations and restrictions, mgardlass of whether such covenants, reservations and rast~icfions ara set forth in such contract, deed or other instruments. No breach of any of the provisions of this Regulatory Agreement shall defeat or render invalid the lien of a mortgage or deed of trust made in good faith and for value encumbering the Development Site. Section 13. Burden and Benefit. The Issuer and the Borrower here. by declare their understanding and intent that the burden of the covenants set forth herein touch and concern the land in that the Borrower's legal interest in the Development is rendered less valuable thereby. The Issuer and the Borrower hereby further declare their understanding and intent that the benefit of such covenants touch and concern the land by enhancing and increasing the enjoyment and use of the Development by Low Income Tenants and Very Low Income Tenants, the intended beneficiaries of such covenants, reservations and restrictions, and by furthering the public purposes for which the Note was issued. Section 14. Uniformity; Common Plan. The covenants, resewations and restrictions hereof shall apply uniformly to the entire Development in order to establish and carry out a common plan for the use, development and improvement of the Development Site. Section 15. Enforcement. If the Borrower defaults in the performance or observance of any covenant, agreement or obligation of the Borrower set forth in this Regulatory Agreement, and if such default remains uncured for a period of 60 days after written notice thereof shall have been given by the Issuer or the Bondowner Representative to the Borrower which identifies the nature of the default, then the Issuer acting on its own behalf may declare an "Event of Default" to have occurred hereunder, and, at its option, may take any one or more of the following steps: (i) by mandamus or other suit, action or proceeding at law or in equity, require the Bormwar to perform its obligations and covenants hereunder or enjoin any acts or things which may be unlawful or in violation of the fights of the Issuer or the Bondowner Representative hereunder;, (ii) have access to and inspect, examine and make copies of all of the books and records of the Borrower pertaining to the Development; (iii) take such other action at law or in equity as may appear necessary or desirable to enforce the obligations, covenants and agreements of the Borrower hereunder;, or (iv) subject to the provisions of Article VII of the Loan Agreement, declare a default under the Loan, and accelerate the indebtedness evidenced by the Note. Notwithstanding anything herein to'the contrary, the liability of the Borrower hereunder shall be limited as provided in Section 5.2 of. the Loan Agreement. Section 16. Recordin(~ and Filinc~. The Borrower shall cause this Regulaory Agreement and all amendments and supplements hereto to be recorded and filed in the real property records of the County and in such other places as the Issuer may reasonably request. The Borrower shall pay all fees and charges incuned in connection with any such recording. Section 17. Limited LiabiliW. All obligations and liabilities of the Issuer incurred hereunder shall be limited, payable solely and only from amounts derived by the Issuer from the Loan or otherwise under the Loan Agreement. _Section 18. Goveminti Law. This Regulatory Agreement shall be govemed by the laws of the Slate of Califomia. Section 19. Amendments. Except as provided in Section 6(a) hereof, this Regulatory Agreement shall be amended only by a written instrument executed by the parties hereto or their successors in title, and duly recorded in the real property records of the County. .- Section 20. Notice. NI notices, certificates or other communications shall be sufficiently given and shall be deemed given on the date personally delivered or on the second day following the date on which the same have been mailed by first class mail, postage prepaid, addressed as follows: Issuer: City of Cupertino 10300 Torm Avenue Cupertino, Califomia 95014 Attention: Director of Administrative Services Borrower: Cupertino Community Services 10185 N. Stelling Road Cupertino;' Califomia 95014 Bondowner Representative: As provided in Section 8.2 of the Loan Agreement Any of the foregoing parties may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates, documents or other communications shall be sent. Section 21. severabilitv. If any provision of this Regulatory Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not in any way be affected or impaired thereby. Section 22. Multiole Counteroarts. This Regulatory Agreement may be executed in multiple counterparts, all of which shall constitute one and the same instrument, and each of which shall be deemed to be an original. Section 23. Payment of Issuer Expenses. The Borrower hereby agrees to pay, promptly following receipt of a wdtten invoice therefor, all costs incurred by the Issuer (including Issuer staff time and a reasonable charge for overhead expense) in connection with its activities under this Regulatory Agreement including, but no limited to, monitoring compliance by the Borrower with the restrictions set forth in section 4 hereof. Section 24. Third Party Beneficiaw. The parties to this Regulatory Agreement recognize and agree that the terms of this Regulatory Agreement and the enforcement of those terms are entered into for the benefit of the Issuer and the Bondowner Representative. The Bondowner Representative shall accordingly have contractual rights in this Regulatory Agreement, and the Bondowner Representative shall be entitled (but not obligated) to enforce the terms of this Regulatory Agreement in accordance with Section 15 hereof. In addition, the Bondowner Representative is intended to be and shall be a third-party beneficiary of this Regulatory Agreement. -13- 7-/2-7 IN WITNESS WHEREOF, the Issuer and the Borrower have executed this Regulatory Agreement by duly authorized representatives, all as of the date first written hereinabove. CITY OF CUPERTINO By: Ci~ Manaaer CUPERTINO COMMUNITY SERVICES, a California non-profit public benefit corporation By: 03028.01:J5551 STATE OF CALIFORNIA ) COUNTY OF ) On before me, . Notary Public, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/am subscribed to ~ within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized caPacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary (Seal) STATE OF CALIFORNIA ) COUNTY OF ) On before me, , Notary Public, personally appeared , 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 capacity(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 my hand and official seal. Signature of Notary (Seal) EXHIBIT A LEGAL DESCRIPTION OF LAND The land referred to as the Development Site in this Regulatory Agreement is situated in the State of Califomia, County of Santa Clare, and is described as follows: A-1 7-151 EXHIBIT B COMPLETION CERTIFICATE The undersigned hereby certifies that the acquisition and construction of the Development was substantially completed as of CUPERTINO COMMUNITY SERVICES By: Its: The undersigned hereby certifies that: (1) the aggregate amount disbursed on the Loan to date is $ : (2) all amounts disbursed on the Loan have been applied to pay or reimburse the undersigned for the payment of Development Costs and none of the amounts disbursed on the Loan have been applied to pay or reimburse any party for the payment of costs or expenses other than Development Cost. s; (3) at least 97 percent of the amounts disbursed on the Loan have been applied to pay or reimburse the Borrower for the payment of Qualified Development Costs (as that term is used in the Regulatory Agreement); and (4) the Borrower is in compliance with the provisions of Section 6.14 of the Loan Agreement, dated as of October 1, 2001, between the Borrower and the Issuer. Capitalized terms used in this Completion Certificate have the meanings given such terms in the Regulatory Agreement and Declaration of Restrictive Covenants, dated as of October 1, 2001, between Cupertino Community Services and the City of Cupertino. CUPERTINO COMMUNITY SERVICES By: Ils: B-1 .-- EXHIBIT C RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Cupertino 1701 Robertson Road Cupertino, California 95351-3536 Attn: Executive Director CERTIFICATE AS TO COMMENCEMENT OF QUALIFIED DEVELOPMENT PERIOD ~ CITY OF CUPERTINO _ MULTIFAMILY HOUSING REVENUE BONDS (HEART OF CUPERTINO PROJECT), SERIES 2001A The undersigned, on behalf of Cupertino Community Services, hereby certifies that: (complete blank information): 10% of the dwelling units in the Development financed in part from the proceeds of the captioned bonds were first occupied on ,19 50% of the dwelling units in the Development financed in pert from the proceeds of the captioned bonds were first occupied on ,1L. DATED: .20 CUPERTINO COMMUNITY SERVICES By: Its: Acknowledged: CITY OF CUPERTINO By: Its: C-1 AGREEMENT FOR BOND COUNSEL SERVICES BY AND BETWEEN THE CITY OF CUPERTINO AND QUINT & THIMMIG LLP, FOR BOND COUNSEL SERVICES IN CONNECTION WITH MULTIFAMILY HOUSING BOND PROCEEDINGS THIS AGREEMENT FOR BOND COUNSEL SERVICES (the "Agreement") is entered into this 1st day of October, 2001, by and between the CITY OF CUPERTINO .(the 'Issuer') and QUINT & THIMMIG LLP, San Francisco, California ("Attorneys"). WITNESSETH: WHEREAS, the Issuer is considering the financing of the acquisition and construction of a multifamily rental housing development to be located at 10114 and 10214 Vista Drive in the City of Cupertino (the "Project"), by means of the issuance of Bonds of the Issuer (the "Bonds") to a local financial institution, and the lending of the proceeds of Bonds to a nonprofit public benefit corporation that will acquire and develop the Project; and WHEREAS, in connection with such financing the Issuer requires the advice and assistance of bond counsel. NOW, THEREFORE, in consideration of the promises and the mutual covenants hereinafter set forth, the parties hereto do hereby agree as follows: Section 1. Duties of Attomeya. Attorneys shall do, carry out and perform all of the following services as are necessary for the issuance of the Bonds: (a) Consultation and cooperation with the Issuer's staff and consultants including, its Director of Administrative Services, and the City Attorney, and all other officers and employees of the !ssuer, with the financial institution that will purchase the Bonds, and any pmfossional firms engaged by the Issuer with respect to the issuance of the Bonds and assisting such persons in the formulation of a coordinated financial and legal financing from the proceeds of the Bonds. (b) Preparation of all legal proceedings deemed necessary or advisable by Attomeys for the authorization, issuance and deliver/of the Bonds; including preparation of (i) documentation required for the issuance of the Bonds by the Issuer, including a resolution authorizing and directing the sale of the Bonds, all documentation required to be executed by the Issuer in connection with the delivery of the Bonds to the purchaser thereof, and all agreements providing collateral secu~ty for the Bonds except as may be within the scope of responsibility of any attorneys representing other parties to the transaction, (ii) necessary Califomia Debt and Investment Advisory Commission filings and other reports and documents required to be filed by the Issuer in connection with the issuance of the Bonds, (iii) certificates, requisitions, mcoipts and other documents required in connection with the delivery of the Bonds to the original purchaser thereof, and (iv) other proceedings of the Issuer incidental to or in connection with the issuance, sale and delivery of the Bonds. 03028.01:J5547 (c) Application for any Internal Revenue Service or other rulings deemed necessary by Attomeys (but only following consultation with and approval by the Issuer) to ensure the exemption of interest on the Bonds from federal or, if applicable, State of California personal income taxation. (d) Advising the Issuer as to the need to register the Bonds under applicable federal securities laws or to obtain a permit to issue the Bonds under applicable State of Califomia securities laws, or to obtain no-action letters or similar determinations from the Securities Exchange Commission or Califomia Borrowers Commission. (e) Subject to the completion of proceedings to the satisfaction of Attomeys, providing a legal opinion (i) approving the legality of the proceedings of the Issuer for the authorization, issuance and delivery of the Bonds, and (ii) stating that interest on the Bonds is excluded from gross income for federal income tax purposes and is exempt from State of California personal income taxation. (f) Legal consultation requested by the Issuer concerning the Bonds and any resolutions, certificates, agreements and other documents relating to the authorization, issuance and delivery of the Bonds at any time following issuance of the Bonds. (g) Attorneys shall perform such other and further services as are customarily performed by bond counsel on similar financings. Attomeys shall not be responsible for (i) the rendering as to any opinion related to the priority or enforceability of any deed of trust, (ii) the rendering of any opinion as to litigation affecting the Issuer or any conflict between the Bonds and other obligations of the Issuer, or (iii) the preparation or content of any official statement, · -' private placement memorandum or other offering document describing the Bonds. Attomeys also shall not be responsible for (i) compliance by the Issuer with arbitrage rebate requirements under federal tax law, other than to render advice as to the legal interpretation of such requirements as set forth in the documents relating to the Bonds, (ii) the rapresentation of the Issuer in connection with any litigation involving the Bonds, or (iii) representation in connection with the continuing disclosure requirements of the Securities and Exchange Commission. Without limiting the generality of the foregoing, Attorneys shall not be responsible for preparing any calculations or documentation to establish compliance with such rebate requirements or otherwise for computing the amounts required to be rebated, or for providing any litigation or continuing disclosure se~ces related to the Bonds, without a separate agreement bet~veen the Issuer and Attorneys. Section 2. Compensation. For the services listed in Section 1, Altomeys shall be paid a fee of $25,000. Payment of said compensation shall be entirely contingent upon the successful issuance of the Bonds and shall be payable solely from the proceeds of the Bonds or other sources of financing for the Project. Section 3. Responsibilities of Issuer. The Issuer shall cooperate with Attomeys and shall furnish Attomeys with certified copies of all proceedings taken by the Issuer and deemed necessary by Attomeys to render an opinion on the validity of the Bonds. All costs and expenses incun'ed incidental to the actual issuance and delivery of the Bonds, including the cost and expense of preparing ceditied copies of proceedings required by Attomeys in connection with the issuance of the Bonds, ttm cost of all printing and publication co,Ns, fees and expenses of parties other than Attorneys, costs and expenses of legal adverlieing and all other expenses incurred in connection with the issuance of the Bonds, shall be paid by the Issuer, and shall not be the responsibility of A~meys. 2 '7-1 Section 4. Termination of Agreement. This Agreement may be terminated at any time by the Issuer with or without cause upon written notice to Attomeys. In the event of such termination, all finished and unfinished documents shall at the option of the Issuer become its property and shall be delivered to the Issuer by Attorneys. IN WITNESS WHEREOF, the Issuer and Attomeys have executed this Agreement as of the date first above written. CITYOFCUPERTINO By: Its: QUINT & THIMMIG LLP By: Paul J. Thimmig, Esq., Partner 3 10301) Ton Avenue C~z~rt~o, CA 95014 FAX (408) 9~-3333 SUMMARY AGENDA NO. ~ AGENDA DATE: October 1, 2001 SUMMARY: Appeal of Planning Commission approval of Application No. 14-ASA-01, regarding architectural and site approval for lighting, color, materials, landscaping and other design features of an approved apartment building at Lot 1, Tract 7953, Cupertino City Center (APN) 369-01-029). The Appl,icant is the Stevens Creek Apad.,ents (Verona). The appeal was filed by Councilmember Don Bumett. RECOMMENDATION: '"* ~' ' Continue this item to the meeting of October 15, 2001.~ ~: ..... i..- This appeal was continued from the City Council ~~ll[[~[-~-~t' _~_~[~ meeting of August 20, 2001, and September 17, 2001, .~-..~-..~J,,...- ...~. ~-.- ~.,. .... ~ to enable the applicant to prepare 'more detailed '---- ~-,- .~.,..~.,_. ._-~._.~ , drawings demonstrating that the building plans for the ~----' - :~~ planned V~'olia Apartmen_t developmellt eln~_e, ly resemble the approvals granted by the City Council in June 2000. DISCUSSION: The applicant prepared a set of exhibits depicting the approved exhibits and the planned construction drawings. However, staff felt the exhibits were confusing and needed to be revised to enable easy comparison in te~,,.~ of the order and scale of the elevations and site plan. Therefore, staff recommended the applicant request another continuance to prepare a more readable plan set. Staff is confident the exhibit package will be ready for the City Council meeting qf Octobe~-4,$, 2001, and recovnmends the Council continue this item to October 15. Dave Knapp Director of Community Development City Manager H:Veronal0.01.01 ! 0300 Tone Avenue Cupertino, CA 95014 (408) 777-3308 CITY OF FAX (408) 777-3333 CUPE iNO L:ommmllty Development Department SUMMARY AGENDA NO. ,9 AGENDA DATE October I, 2001 SUMMARY: REZONING from RI-10 to PCRES), USE PERMIT to demolish an existing house and construct 9 single-family townhomes, and a TENTATIVE MAP to subdivide a 1.04.acre parcel into 9 townhome lots and 1 common lot ( Exhibit A). RECOMMENDATION: At its September 10, 2001 meeting, the Planning Commission recommended approval of: 1. Negative Declaration, file no. 14-EA-01, on a 5-0 vote, 2. Rezoning, file no. 06-Z-01, on a 4-1 vote (Kwok no), 3. Tentative Map, file no. 03-TM-01, on a 4-1 vote (Kwok no), and 4. Use Pe,,llt, file no. 0g-U-01, on a 4.1 vote CKwok no) per the model resolutions. BACKGROUND: Application Nos.: 06-Z-01, 08-U-01, 03-TM-01 (14-EA-01) Applicant: R~Z Development Property Owner: R&Z Development Property Location: 20075 DePalma Lane Project Data: General Plan Designation: Med./Low. Density Residential 5-10 d.u./gr.ac. Existing Zoning Designation: R1-10 Pr6posed Zoning Designation: P(RES) Gross Acres: 1.18 acre (51,202 square feet) Net Acres: 1.04 acre (45,200 square feet) Residential: Dwelling units: 9 Unit type: attached units Site density: 8.65 d.u./gr, ac. Building Area: 21,901 square feet Site FAR: 48.5% Parking ratio: 4 spaces per dwelling Stories/Height: 2 stories/29' 4" Printed on Recycled Paper Coverages: Buildings: 31 °A Driveway & Parking: 22% Walkways: 1% Landscaping & Pathway: 46% Front Setback: First Story Second Story Rodrigues Ave: 22 feet 30 feet Regnnrt Creek: 15 feet 21 feet Side Setback: First Sto~'v Second Story East Side: 7 & 12 feet 20, 23 & 30 feet West Side: 25 feet min. 36 feet-min. Project Consistency with: General Plan yes Zoning n/a Environmental Assessment: Negative Declaration DISCUSSION: Pro/ect Description The proposed project consists of nine townhouse units arranged in three building sets with one set of two units facing Rodrigues Avenue, one set of four units facing Regnart Creek and a middle set of three units. All of the vehicular access is taken offof Rodrigues Avenue instead of using the rear access off of De Palms Lane. The project incorporates a publicly accessible pedestrian path from a small open area fronting Rodrigues to a trail segment planned along Regnart Creek. This trail segment will either connect to the sidewalks on De Palms Lane or follow the creek out to Blaney Avenue. Eventually, the trail may link up with the Regnart Creek trail being planned in conjunction with the Civic Center project. The units have been designed to minimize the second story elements with greater side setbacks and placement of the second story building mass toward the center of the buildings. Side-thcing, 2nd-story, windows were eliminated from the design to protect privacy. The units fronting Rodrigues Avenue are planned to incorporate low wrought iron fencing and porches to provide a more interesting traditional streetscape. Density and Building Massing The project equals a density of 8.65 uniTM per gross acre and a floor area ratio (FAR) of 48.5%. The General Plan allows up to 10 units per gross acre. Neither the zoning or general plan specifies a maximum floor area ratio, however, the City Council has limited the FAR of single- family detached developments, even small lot developments, to an average total FAR of 45% (e.g. the Homestead and Maxine Drive residential approval), but approved higher FAR's tbr .... attached housing (c.g. $9% FAR for College Villa on Stelling Road). The adjacent duplexes to the east have a density of 7.58 units per gross acre and the single/hmily cluster units to the west have a density of $.0 units per gross acre. Thc project proposes that 46% of the site be devoted to landscaping, yards and pathways. The adjacent developments have approximately 64% and 58% in open areas. Traffic There is one existing single family home on the property so the project represents a net increase of only 8 units. Public Works staff felt this is a nominal increase and did not require a traffic report. Staff estimates the project will generate only 80 additional trips on Rodrigues Avenue. The street capacity should be able to easily absorb this increase. The two units fronting on Roclrigues Avenue will back out onto the street. This is a orientation that is common to the other duplexes arranged along Rodrigues Avenue and should not pose an undue safhty hATnrd. Site Design to Lessen Storm Water Flows The project has been designed so that a portion of the storm flows are diverted to an open rock swale in order to meet new mandates from the San Francisco Bay Regional Water Quality Control Board to reduce nonpoint source pollution through greater detention of storm waters on properties. Excessive storm flows that cannot be detained and filtered onsite will flow into a storm inlet that leads to the City stom~ drainage system. Pedestrian Path The applicant will be maintaining the trail connection between Rodrigues Avenue and Regnart Creek. Staff would like to give the applicant the option of developing it with asphalt or crushed granite. Public Comments: Three members of the public spoke against the project. Another public member expressed some concerns about some aspects of the project (Exhibit B). Planning Commissioner Comments: Commissioner Kwok felt the proposed density was too high for the neighborhood, even though the density was consistent with the General Plan residential density range of 5-10 du/gr. Ac. Commissioner Patnoe felt the chimneys were too tall and awkward in appearance and suggested their removal. The architect said they were part of the residential lexicon, but he could delete them and vent the gas fireplaces some other way. Commissioner Patnoe dropped his proposal when he found no support for it among the other commissioners. The Commission recommended approval of the proposal on a 4-1 vote (Kwok Enclosures: Planning Commission Resolution Nos. 6104, 6105, 6106 Ordinance No. 1887 Exhibit A: Planning Commission Staff Report dated 9/10/01 Exhibit B: Planning Commission meeting minutes dated 9/10/01 7-5 Prepared by: Colin Jung, Senior Planner Submitte~ by: . Approved by: Director of Community Development City Manager g:planning/pdreport/cc/ccOguO 1 6-Z-01 CITY OF CUPERTINo 10300 Tone Avenue Cupertino, California 95014 RESOLUTION NO. 6106 OF TH~ PLANNING COMMISSION OF THE CITY OF CUPERTINO RECOMMENDING APPROVAL OF THE REZONING OF AN APPROXIMATELY 45~.00 SQ. FT. PARCEL FROM RI-10 TO P(RES) AT 20075 DE PALMA LANE SECTION I: FINDINGS WHEREAS, the Plam~i-g Commission of the' City of Cupertino received an application for a rezoning of property, as described on Section H. of this Resolution; and WHEREAS, thc necessary notices have been given in accordance with the Procedural Orai-.-ce of the City of Cupertino, and the Planning Commission has held one or more Public Hearings on this matter; WHEREAS, the Pls..ing Commission finds that the subject rezoning meets the following _ requirements: 1) That the rezo.lng is in conforms-ce with the General Plan of the City of Cupertino; and 2) That the property involved is adequate in size and shape to conform to the new zoning designation; and 3) That the proposed rezoning is otherwise not detrimental to the health, safety, peace, morals and general welfare of people living and working in the arca; and 4) That the proposed rezoning encourages the most appropriate use of land; and 5) That the proposed rezoning promotes the orderly development of the city; NOW, THEREFORE, BE IT RESOLVED: That after careful consideration of maps, facts, exhibits, testimony and other evidence submitted in this matter, the application for Rezonlng is hereby recommended for approval by the Planning Commission of the City of Cupertino. That the subconclusions upon which the findings and conditions specified in this Resolution are based and contained in the Public Hearing record concerning Application 06-Z-01 as set forth in the Minutes -' of the Planning Cornmi-.sion Meeting of, September 10, 2001, and are incorporated by reference though fully set forth herein. Resolution No. 6106 06-Z-01 September I0, 2001 Page 2 SECTION II: PROJECT DESCRIPTION .Application No.: 06-Z-01 (14-EA-01) Applicant: R~Z Development Property Owner: ~ Development Location: 20075 De Palina Lane SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPT. 1. APPROVED EXHIBITS Approval is based on Exhibits A-1 & B-1. 2. NOTICE OF FEES, DEDICATIONS, RESERVATIONS OR OTHER EXACTIONS The Conditions of Project Approval set forth herein may include certain fees, dedications, requirements, reservation requirements, and other exactions. Purs~mnt to Government Code Section 66020(d) (1), these Conditions constitute written notice of a statement of the amount of such fees, and a description of the dedications, reservations, and other exactions. You are hereby further notified that the 90-day approval period in which you may protest these fees, dedications, reservations, and other exactions, pursuant to Government Code Section 66020(a), has begun. If you fail to file a protest within this 90-day period complying with all of the requirements of Section 66020, you will be legally barred from later challenging such exactions. PASSED AND ADOPTED this 10~ day of September, 2001, at'a Regular Meeting of the Planning Commission of the City of Cupertino, State of California, by the following roll call vote: AYES: COMMISSIONERS: Corr, Patnoe, Chen and Auerbach NOES: COMMISSIONERS: Chairpei.~on Kwok ABSTAIN: ~ COMMISSIONERS: ABSENT: COMMISSIONERS: ATTEST: APPROVED: /s/Steve Piasecki /s/Patrick Kwok Steve Piasecki Patrick Kwok, Chair Director of Community Development Cupertino Planning Commission g/planning/pdreport/res/res06z01 ..... Exhibit PROPERTY DESCRIPTION FOR REZONING 20075 .DE PALliA LAN. E ASSESSOR PARCEL NO.. 369-32-003 BEG~qI~;~ at a point ~n the Southe=ly l~ne o~ eh-t ce~ 22 .Z~8' · ~ con~yed ~ ~he B~aeaey u ~ o~ ~ p~n~, to ~ed ~ted N~e= 21, 190_5 ~-d ~eco~d ~ B~ 299 o~ Dee~, page 593, dieter ~e~e~ Sou~ 89~ 57~ .~BC 533,4L feet ~ ~ H~ute~ly ~o~ o~ to ~ t~ond~pe t~t is .~st~t ~.20 ~eet Banally ~ zigh~ ~le ~les the~m~ 236.65 feet, ~=e o= ~eas~ .to ~ 8~ete=l~ co~e= of ce~a~n 5.333 ac~e t~act o~ 1~ c~ve~ ~ ~ B~ et ~ to Fe~dez ~ ~ed ~ted hy 5~ 1927 ~ ~co~ hy L2, 1927 ~n Book 323 Official bcor~, pa~e 12; t~ce ~o~ ~e S~e=ly li~ of said 5.333 C=act No~h 89° SA' Bast 200 feet; ~ee p~allel ~ said Weste=12 said 22.XL8 ac=e t=act S~ly 236.70 ~eet, ~ o= less, to ~e po~t o~ begi~ ~ bei~ a p~t o~ a~d 22.118 ac=e t=act in section X3 t~s~p 7 et ~ to ~e S--ts Clara' Co~ty Flood C~t~l =-~ Wat~ C~e~ation DAst=ict, ~ted S~e~e= 20, X961 ~ =scold F~ X,' X9~2 .in B~k S4S30f~ici~ ~eco~a~ pa~e 229, desc=~ed as ~ ~s~io ~z~, his wi~e, ze~d in Book 1482, p~e 4~1 Official of S~ta Cl~a Cowry, in the ~o~aat l/4 'o~ Secti~ X3~ To~p 7 Sou~, ~e 2 ~est, M.D.B. & ~., ~ ~e p~i~ly descend as B~ at tb Sou~easte=ly co~ o~ ~e 1~ o~ ~z~ aa descried a~o=e~ti~ed ~ed; ~e al~ th S~tb~ly l~ne o~ a~d X~ds ~. 8~° 03' 20= ~. 200.00 ~eet to t~ Sou~atezly ~ ~=eo~; ~e ~este=ly li~ o~ said 1~ N. 0· S9' ~. X0.'00 ~qet; ~ce pazallel to said S~=ly li~ ~ ~s~t ~o~h~ly ~ef~ X0.00 ~eet ~as~ed at ~les S. 89° 03' 20~ R. 200.00 feet to ~e ~aate:ly line of said l~es; ~nce alo~ said Raste=lF li~ S. 0· S9' ~. 10.00 ~eet to t~ point o~ c~taining .046 ac=es ~'1~,' ~=e o= leas. The basis o~ bea=i~ o~ ~h!e ~ac=ipti~ is ~. 89· 03' 20~ W. as s~ ~ the 1/16 section line ~ the ~p of ~act 2248.. ~O EXC~ t~i=om ~ ~e~ ~te= ~ =ights ~hezeto ~i~ ~ =ights deed =eco=ded ~y ll, X973 ~ Bo~ 0373 pa~e 173 S~ta elm ~ty mentioned 1~, o~ ~e ~y ~il~ oF st~ctu=e ., EXI-IIRIT B A' 20075 De Palma Lane ~ · APN: .369-32-003 /~'~/ ' ~ P//tL/'/I,,~ L,'tNN -- 03-TM.-01 CITY OF CUPERTINO 10300 Tone Avenue Cupertino, California 9//014 RESOLUTION NO. 6105 OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO RECOMMENDING APPROVAL OF A TENTATIVE MAP TO SUBDIVIDE ONE PARCEL (45,200 SQUARE FEET) INTO 9 TOWNHOME LOTS WITH LOT SIZES RANGING FROM 2,098 SQUARE FEET TO 3,078 SQUARE FEET, AND ONE COMMON LOT AT 20075 DE' PALMA LANE SECTION h FINDINGS: WHEREAS, the p1Annlng Cornmi-~sion of the City of Cupertino r~r, eived an application for a Tentative Subdivision Map as described in Section II. of this Reiolution; and WHEREAS, the necessary public helices have been given as required by the Subdivision and Procedural Ordinances of the City of Cupertino,'. and the Planning Cowmission has held at least one publlo healing in regard to the application; and WHEREAs, the applicant hs., met the burden of pwof required to support said application; and has satisfied the following requirements: a) That the proposed subdivision map is consistent with the City of Cupertino. General Plan. b) That the design and 'improVe~llents of the proposed subdivision are consistent with the C-eneral Plan. c) That the site is physically suitable for the type and intensity Of d~velopment contemplated under the approved subdivision. d) That the design of the subdivision or the proposed improvements are not likely to cause substantial environmental damage nor substantially and unavoidable .injure fish and wildlife or their habitat. e) That the design of the subdivisionor the type of improvements associated therewith are not ' likely to ~_]_~ serious public health problems. f) That the. design of the subdivision and its associated improvements will not conflict with. easements acquired by the public at large for access through or use of property within the proposed subdivision. NOW, THEREFORE, BE IT RESOLVED: Resolution No. 6105 03-TM-01 September 10, 2001 Page -2- That after careful consideration of re?s, facts, exhibits, testimony and other evidence submltt~l in this matter, the application 03-TM-01 for a Tentative Map is hereby approved subject to the conditions which are enumerated in thi.~ Resolution be~nnin~ on page 2 thereof, and That the mlbconclusions upon which the findings and conditions specified in this Resolution sre bnsed nnd contained in' the Public Henring record concerning Application 03-TM-01, as set forth ' in the Minutes of Planning Commission Meeting of September 10, 2001, and are incorporated by reference as though fully set forth herein. SECTION II: PROJECT DESCRIPTION. Application No.: 03-TM-01 (14-EA-01) Applicant: R~Z Development Location: 20075 De Palina Lane SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPT. 1. APPROVED EXHIBITS The approval is based on exhibits titled: "CAMPO de LOZANO: Between Rodrigues Avenue and 20075 De Palina Lane, Cupertino, California" consisting of 18 pa~es labeled: C, 1 (Preliminary Grading Plan), and 1 (Tentative Map), dated 1~/29/01, except as tony be amended · by the conditions contained in this resolution. 2. NOTICE OF FEES, DEDICATIONS, RESERVATIONS OR OTIIV. R EXACTIONS The Conditions of Project Approval set forth herein may include certsi~ fees, dedication requirements, reservation requirements, and other exactions. Purs-s,~t to Government Code Section ~6020(d) (1), these Conditions constitute written notice of a statement of the nmount of such fees, and a description of the dedications, reservations, and other exactions. You are hereby further notified that .the 90-day approval period in which you may protest these fees, dedications, reservations, and other exactions, pursuant to C-ovemment Code Section 66020(a), has he,tm. If you fail to file a protest'within this 90-day period complying with all of the requirements of Section 66020, you will be legally barred flora later challen/ing such exactions. 3. HOUSING MITIGATION REQUIREMENTS The applicant shnll comply with the requirements of the Housing Mitigation Man,hi. 4. BEST MANAGEMENT PRACTICES Resolution No. 6105 03-TM-01 Sel mber 10, 2001 Page -~- Utilize Best Management Practices (BMP's), as ~uired by thc State Water Resources Control Board, for construction activity which disturbs soil. 5. COVENANT REGARDING PEDESTRIAN'PATHWAY EASEMI~NT 'The developer shall record a covenant on each lot to be sold or leased, info.,,ing future lot purchasers or renters of the existence of the pedesUian pathway easement in the area. 6. DEMOLITION REOUIREMENT All existing structures on the .site shall be removed prior to or concurrently with project cormi~action. The developer 'shidl assume the responsibility to obtain all required demolition permits in accordance with City Ordinances. The applicant shall agree to site inspection by the Cupertino Historical Society .if requested by the City. 7. TREE PROTECTION The applicant is required to retnln tr~s numbered 467, 468, 469 and 481 as identified in the arborist report titled: "Tree Survey for the Trees Located (~20075 De pnlmn Lane, Cupertino, California", prepared by Tree Health Professionals, Inc. and dated July 31, 2001. The remaining trees may be removed without further permits from the City of.Cupertino. Thc rctnined trees are required to be protected until nntural death. A bond in the amount of $10,000 per tree, for a ._ maximum of $40,000 shall be placed to 'assure maximum protection of said trees, during construction. The tree protection methods outlined in the aforementioned arborist report shall be completed by the.contracting arborist Ii' no si_ores of damage or ill health due to constm0tion activities are identified the bond shall be released. If the tree(s) is irreversibly damaged the bond shall be held and applied to the in-~rallation of the largest replacement tree on the site as recommended by the 'internntionally Certified Arborist. If the tree can be repaired by an Internationally Certified Arborist the bond or a portion, thereof shall be applied to its repair. The bond ~aay be released following issuance of the occupancy permit and after written confumatlon by the contracted internationally certified arborist that the trees are healthy. The bond shall be forfeited if the health of the trees is compromised. The applicant .~hnl! prOvide staff with a copy of the contract between the applicant and an internationally certified arborist This contract shnll specify the methods to assure compliance with the July 31, 2001 arborist report. The contract may include periodic site visits, review of construction drawings, and recommendations on alternative construction methods for maximum tree preservation. SECTION IV: CONDITIONS ADMINISTERED BY THE PUBLIC WORKS DEPARTMENT 8. STREET WIDENING Street widening, improvements and dedications _~hnll be provided in accordance with Ci~ Standards and specifications and as required by the City En~ineer. Resolution No. 6105 03-TM-01 September 10, 2001 Page 9. CURB AND GUTTER IMPROVEMENTS Curbs and gutters, sidewalks and related structures shall be ;n.~alled in accora~,~ce with grades and standards as specified by the City Engineer. 10. STREET LIGHTING INST~,LLATION Street lighting shsll be in.,~alled and shall be as approved by the City Engineer. Lighting fixtures shall be positioned so as to preclude glare and other forms of vi~..I interference to adjoining properties, and shall be no higher thsn the msxim,m height permitted by the zone in. which the site is located. 11. FIRE IIYDRANT Fire hydrants shs!! be k~ated as required by the City. 12: TRAFFIC SIGNS Trsffic control signs shall be placed at locations specified by the City. 13. STREET TREES Street trees shall be planted within the Public Right of Way and shall be of a type approved · by the City in accordance with Ordinance No. 125. 14..GRADING Grading shall be as approved and required by the City Engineer in accordance with Chapter 16.08 of the Cupertino Municipal Code. 401 Certifications and 404 permits may be required. Please contact Army Corp of R%,ineers and/or Regional Water Quality Control Board as appropriate. 15. DRAINAGE Drainage. shall be prox;ided to the satisfaction of the City Engineer. Surface flow across public sidewalks may be allowed in the R-l, R-2 and R-3 zones unless storm drain facilities are deemed necessary by the City Engineer. Development in all other zoning di,,tdcts shall be served by on site sto, m drainage facilities connected to the City storm drainage system. If City storm drains are not available, drainage facilities shall be installed to the satisfaction of thc City Engineer. 16. FIRE PROTECTION Fire sprinklers shall be installed in any new construction to the approval of the City. 17. UNDERGROUND UTII.ITIES The developer shsll comply with the requirements of the Underground Utilities Ordinance No. 331 and other related Ordinances and regulations of the City of Cupertino, and shall coordinate with affeL~d utility providers for in.~allation of underground utility devices. Th~ Resolution No. 6105 03-TM-01 Septembe~ 10, 2001 Page -s- developer shah submit detailed plans showing utility underground provisions. Said plans shall be subject to prior approval of the affected Utility provider and the City Engineer. 18. IMPROVEMENT AGREEMENT The project developer shall enter into a development agreement with the City of Cupertino providing for payment of fees, includin~ but not limited to checking aad inspection fees, sto.~ drain fees, park dedication fees and fees for undergroun~ng of utilities. Said agreement shall be executed prior to i~-_=_,~ce of construction permits. Fees: a. Checking & Inspection Fees: $ 5% of Off-Site Improvement Cost or $2,268.00 b. ~ Permit: $ 5% of Site hnproveg~nt Cost c. Development 1V[a|ntenRnce Deposit: $3,000.00 d. Stosm DrslnR~e Fee: $1,346.76 ¢. Power Cost: ** f. Map Checking Fees: $546.25 g. Park Fees: $72,000 h. Street Tree By Developer ** Based on the latest effective PG&E rote schedule approved by the PUC. Bonds: a. Faithful Perfo,mance Bond: 100% of Off-site and On-site Improvements b. Labor & Material Bond: 100% of Off-site and On-site Improvements c. On-site Grading Bond: 100% of site improvements. -The fees described above are imposed based upon thc current fee schedule adopted by the City Council However, the fees imposed herein may be modified at the time of recordation of a f~s] map or is.~snce of a building permit in the event of said change or changes, the fees changed at that time will reflect the then current fee schedule. 19. TRANSFORMRRS Electrical lrensformers, telephone vaults and similar above ground equipment enclosures shall be screened with fencing and landscaping or located underground such thst said equipment is not visible from public street areas. 20. DEDICATION OF WATERLINES The developer shall dedicate to the City all waterlines and appurtenances in.,~mlled to City Standards and shall reach an agreement with San lose Water Company for water service to the subject development. 21. 'FIRE ACCESS LANES Resolution No. 6105 03-TM-01 September 10, 2001 Page -6- Emergency fire access lanes shall be recorded as fire lane easements on the final map and shall meet Central Fire Di.-hlct stsn,iAnts. 22. BEST MANAGEMENT PRACTICES Utilize Be, st Management PractiCeS (BMP's), as required by the State Water Resources Control Board, for construction a~ivity which disturbs soil. BMP plans shall be included in your grsdi,~g and street improvement plans. Erosion and or sediment control plan shall be provided. 23. DRIVEWAY Driveways shall confoi.~-, to City standard'details. 24. FINAL MAP DET?.H.$. -. Applicant shall specify the nature of the public utility easement on the final subdivision map. (ingress, agress, utilities, storm drslns~e, etc.) 22. WALKWAY/PATHWAY " The developer shall design and construct a walkway/pathway that is no less thon' 5' wide from the Rodrigues Avenue sidewalk to its connection with the approved 8' Regnart Creek walkway/pathway which shall also be designed and cor~l~acied by the applicant. This final design must be completed and approved, prior to the recordation of the final map. · Construction must be completed prior to buildln~ occupancy. Both design and construction shall be to the satisfaction oftbe Director of Public Works and the Santa Clara Valley Water District. 23. RECORDATION OF EASEMENTS & AGREEMENTS Applicant shall record appropriate easements, and maintenance and liability agreements subject to the review and approval of the City Attorney. CITY ENGINEER'S CERTIFICATE OF ACCEPTANCE OF ENGINEERING/SURVEYING CONDITIONS (Section 66474.18 California Government Code) I hereby certify that the engineering and surveying conditions specified in Section IV. of this Resolution conform to generally accepted engineering practices. Ralph Q-~lls, Diroztor of Public Works Resolution No. 610~ 03-TM-01 Sq~ber 10, 2001 Page -?- PASSED AND ADOPTED this 10th day of Septemb~ 2001, at a Regular Meeting of the Planning Commission of the City of Cupertino, State of California, by the following roll call vote: AYES: COMMISSIONER~: Corr, Patnoe, Chen and Auerbach NOES: COMMISSIONERS: Clmirp~on Kwok ABSTAIN: COMMISSIONERS: ABSENT: COMMISSIONERS: ATTEST: APPROVED: /s/Steve Piasecki /s/Patrick Kwok Steve Piaseeki Patrick Kwok, Chair Director of Comm~lity Development Cupertino Pla~nlng Commission G:/plnn~ng/pdmport/res/03tm01 08-U-O1 CITY OF CUPERTINO 10300 Tone Avenue Cupertino, California 95014 RESOLUTION NO. 6104 OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO RECOMMENDING APPROVAL OF A USE PERMIT TO DEMOLISH AN EXISTING SINGLE-FAMILY RESIDENCE AND CONSTRUCT NINE SINGLE-FAMILY TOWNHOUSES ON 1.04 NET ACRES AT 20075 DE PALMA LANE SECTION I: FINDINGS WHEREAS, the Planning Commission of the City of Cupertino received an application for a Use P;m,it, as described in Section II. of this Resolution; and WHEREAS, the necessary public notices have been given in accordance with the Procedural Ordinance of the City of Cupertino, and the plsnning Commission has held one or more public hearings on this matter; and WHEREAS, the applicant h~s met thc burden of proof required to support said application; and has satisfied the following requirements: 1) The proposed use, at the proposed location, will not be detrimental or injurious to property or improvements in the vicinity, and will not be detrimental to the public health, safety, general welfare, or convenience; 2) The proposed use will bc located and conducted in a manner in accord with the Cupertino Comprehensive General Plan and the purpose of this rifle. NOW, THEi~EFORE, BE IT RESOLVED: That after careful consideration of maps, facts, exhibits, testimony and other evidence submitted in this matter, the application for Use Permit is hereby recommended for approval, subject to the conditions which are enumerated in this Resolution beginning on Page 2 thereof; and That the subconclusions upon which the findings and conditions specified in this resolution are based and contained in the public hearing record concerning Application No. 0g-U-01 as set forth in the Minutes of the Planning Commission Meeting of September 10, 2001, and arc incorporated by reference though fully set forth herein. SECTION Ih PROIECT DESCRIPTION Application No.: 08-U-01 and 14-EA-01 Applicant: P,~Z Development Location: 20075 De Palina Lane Resolution No. 6104 0S-U-01 September 10, 2001 Page -2- SECTION HI: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPT. 1. APPROVED EXI:IIRITS The approval is based on exhibits rifled: "CAMPO de LOZANO: Between Rodrigues Avenue and 20075 De Palma Lane, Cupertino, California" consisting of 18 pages labeled: C, A, Site Plan, S, elevations, 1 through II, and L, dated July 2001, except as may be amended by the conditions contained in this resolution. 2. NOTICE OF FEES, DEDICATIONS, RESERVATIONS OR OTHER EXACTIONS The Conditions of Project Approval set forth herein may include certain fees, dedication requirements, reservation requirements,, anii other exactions. Pursuant to Government Code Section 66020(d) (1), these Conditions constitute w~itten notice of a statement of the amount of such fees, and a description of the dedications, reservations,-and other exactions. You are hereby further notified that the 90-day approval period in which you may protest these fees, dedications, reservations, and other exactions, purs-Ant to Government Code Section 66020(a), has begun. If you fail to file a protest within this 90-day period complying with all of the requirements of Section 66020, you will be legally barred from later challenging such exactions. 3. HOUSING MITIGATION REQUIREMENTS The applicant shall comply with the requirements of the Housing Mitigation Manual. 4. BEST MANAGEMENT PRACTICES Utilize Best Management Practices (BMP's), as required by the State Water Resources Control Board, for construction activity which disturbs soil. 5. COVENANT REGARDING PEDESTRIAN PATHWAY EASEMENT The developer shall record a coveoont on each lot to be sold or leased, informing future lot purchasers or renters of the existence of the pedesUian pathway easement in the area. 6. DEMOLmON REOIJIREMI~NT All existing slructures on the site shall be removed prior to or concurrently with project con~traction. The developer shall assume the' responsibility to obtain all required demolition l~,~dts in accordance with City Ordinances. The applicant shall agree to site inspection by the Cupertino Historical Society if requested by the City. 7. TREE PROTECTION The applicant is required to retain trees numbered 467, 468, 469 and 481 as identified in the'arborist report rifled: "Tree Survey for the Trees Located (~0075 De Palma Lane, Cupertino, California", prepared by Tree Health Professionals, Inc. and dated July 31, 2001. The remaining trees may be removed without further permits from the .City of Cupertino. The reta/ned trees are required to be "- protected until natural death. A bond in the amount of $10,000 per tree, for a maximum of $40,000 shall be placed to assure maximum protection of said trees, during cor~traction. Resolution No. 6104 0S-U-01 September 10, 2001 Page -3- The tree pwtection methods outllncd in the aforementioned arborist report shall be completed by the contracting arborist. If no si~en.~ of damage or ill health due to cor~Uaction activities are idcntificd the bond shall be released. If the tree(s) is irreversibly damaged the bond shall be held and applied to the installation of the largest replacement tree on the site as recommended by the Internationally Certified Arborist. If the tree can be repaired by'an Internatio~ally Certified Arborist the bond or a portion thereof shall be applied to its repair. The bond may be released following issn-~ce of the occupancy permit and after written confirmation by the contracted, internationally certified arborist that the trees are healthy. The bond shall be forfeited if the health of the trees is compromised. The applicant shall provide staff with a copy of the contract between the applicant and an internationally certified arborist. This contract shall specify the methods to assure compliance with the July 31, 2001 arborist report. The contract may include periodic site visits, review of construction drawings, and recommendations on alternative con-~/~action methods for maximum tree preservation. SECTION IV: CONDITIONS ADMINISTERED BY THE PUBLIC WORKS DEPARTMENT 8. STREET WIDENING Street widening, improvements and dedications shall be provided in accordance with City Standards and specifications and as required by the City Engineer. 9. CURB AND GUTTER IMPROVEMENTS Curbs and gutters, sidewalks and related structures shall be/ri.stalled in accordance with grades and standards as specified by the City Engineer. 10. STREET LIGHTING INSTALLATION Street .lighting shall be in.~mlled and shall be as approved by the City Engineer. Lighting fixtures shall be positioned so'as to preclude glare and other forms of visual interference to adjoin/ng pwperties, and shall be no higher than the maximum height permitted by the zone in which the site is located. 11. FIRE HYDRANT Fire hydrants shall be located as required by the City. 12. TRAFFIC SIGNS Traffic control signs shall be placed at locations specified by the City. 13. STREET TREES Street trees shall be planted within the Public Right of Way and shall be of a type approved by the City in accordance with Ordinance No. 125. Resolution No. 6104 0S-U-01 September 10, 2001 _ Page ~. 14. GRADING Cn-ading shall be as approved and required by the City F. ngineer in accordance with Chapter 16.08 of the Cupertino Municipal Code. 401 Certifications and 404 pel'aiits may be required. Please cont_~ct Army Corp of Engineers and/or Regional Water Quality Control Board as appmpgate. 15. DRAINAGE Drainage shall be provided to the satisfaction of the City En~neer. Surfa~ flow across public sidewalks may be allowed in the R-l, R-2 and R-3 zones unless storm drain facilities are deemed necessary by the City Engineer.' Development in all other zoning districts shall be served by on site storm drainage facilities connected to the City storm drainage system. If City StOrm drsln.s aro not available, drainage facilities shall be installed to the satisfaction of the City Engineer. 16. FIRE PROTECTION Fire sprinklers shall be installed in any new co~haction to the approval of the City. 17. UNDERGROUND UTILITIES The developer shall comply with the requirements of the Underground Utilities Ordinance No. - 331 and other related Ordinances and regulations of the City of Cupertino, and shall coordinate with affected utility providers for installation of underground utility devices. The developer shall submit detailed plans showing utility underground provisions. Said plans be subject to prior approval of the affected Utility provider and the City Engineer. 18. IMPROVEMENT AGREEMENT The project developer shall enter into a development agreement with the City of Cupertino providing for payment of fees, including but not limited to checking and inspection fees, drain fees, park dedication fees and fees for undergrounding of utilities. Said agreement shall bc executed prior to issuance of conch action permits. Fees: a. Checking & Inspection Fees: $ 5%' of Off-Site Improvement Cost or $2,268.00 rnlnimlull b. Cn'ading Pe~ ~,it: $ 5% of Site Improvement Cost c. Development Maintenance Deposit: $3.,000.00 d. Storm Drainage Fee: $1,346.76 e. Power Cost: ** f. Map Checking Fees: $546.25 g. Park Fees: $72,000 h. Street Tree By Developer ** Based on the latest effective PO&E rate schedule approved by the PUC. Resolution No. 6104 0S-U-01 September 10, 2001 Page -$- Bonds: a. Faithfiil Performance Bond: 100% of Off-site and On-site Improvements b. Labor & Material Bond: 100% of Off-site and On-site Improvements c. On-site Grading Bond: 100% of site improvements. -The fees described above are imposed based upon the current fee schedule adopted by the City Council. However, the fees imposed herein may be modified at the time of recordation of a i~nsl map or issuance of a building permit in'the event of said chsnge or changes, the fees changed at that time will reflect the then current fee schedule. 19. TRANSFORMERS Electrical transformers, telephone vaults and similar above ground equipment enclosures shall be screened with fencing and landscaping or located underground such that said equipment is not visible from public street areas. 20. DEDICATION OF WATERLINES The developer shall dedicate to the City all waterlines and appurtenances installed to City Stand__~ and shall reach an agreement with San Jose Water Company for water service to the subject development. 21. FIRE ACCESS LANES Emergency fire access lanes shall be recorded as fire lane easements on the final map and shall meet Central Fire District standards. 22. BEST MANAGEMENT PRACTICES Utilize Best Management Practices (BMP's), as required by the State Water' Resources Contwl Board, for construction activity which disturbs soil. BMP plans shall be included in your grading and street improvement plans. Erosion and or sediment control plan shall be provided. 23. DRIVEWAY Driveways shall conform to City standarddetails. 24. RECORDATION OF EASEMENTS & AGREEMENTS Applicant shall record appropriate easements, and maintenance and liability agreements subject to the review and approval of the City Attorney. Resolution No. 6104 0S-U-01 September 10, 2001 .- Page -6- PASSED AND ADOPTED this 10th day of September 2001, at a Regular MeetinE of thc Planning Commission of the City of Cupertino, State of Callfornia, by the following roll call vote: AYES: COMMISSIONERS: Corr, Patnoe, Chen and Auerbach NOES: COMMISSIONERS: Chairperson Kwok ABSTAIN: COMMISSIONERS: ABSENT: COMMISSIONERS: ATTEST: APPROVED: /s/Steve Piasecki /s/Patrick Kwok Steve Piasecki Patrick Kwok, Chair Director of Community Development Cupertino Planning Commission g'Jpdrcport/r~/08u01 CITY OF CUPERTINO 10300 Tone Avenue Cupertino, California 95014 ORDINANCE NO. 1887 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO REZONINO A 1.04-ACRE LOT FROM RI-10 TO P(RES) TO ALLOW 9 SINGLE- FAMILY TOWNHOUSES LOCATED AT 20075 DE PALMA LANE WHEREAS, an application was received by the City (Application no. 06-Z-01) for the rezoning of property to P(R. ES) (Planned Development Residential Zoning District); and WHEREAS, the property is presently incorporated and within the City's urban service area; WHEREAS, the zoning is consistent with the City's general plan land use map, proposed uses and surrounding uses; WHEREAS, the zoning will enable the pwperty owner to develop his property in accordance with City residential development standards; WHEREAS, upon due notice and after one public hearing the Planning Commission recommended to the City Council that the rezoning be granted; and WHEREAS, a map of the subject property is attached hereto as Exhibit B-! as a proposed amendment to the Master Zoning Map of the City of Cupertino.. NOW, THEREFORE, BE IT ORDAINED AS FOLLOWS: Section 1. That the property described in attached Exhibit A- 1 is hereby rezonad to PO{ES), Planned Development Zoning District; and that Exhibits A & B attached hereto are made part of the Master Zoning Map of the City of Cupertino. Section 2. This ordinance shall take effect and be in force thirty (30) days after its passage. INTRODUCED at a regular meeting of the City Council of the City of Cupertino the day of , 2001 and ENACTED at a regular meeting of the City Council of the City of Cupertino the day of ,2001, by the following vote: Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: City Clerk ' Mayor, City of Cupertino 8:plannin~/ord/ordO6zOl Exhibit A-X PROPERTY DESCRIPTION FOR REZONING 20075 .DE PAL~A LANE ASSESSOR PARCEL NO. 369-32-003 BE~INNIN~ at a point in the Southerly line of e~=~ eerie/n22.118' acre tract of land co~veyedbyBlanche Braesey as ~uar~/anof ~he peres, to~ey Bl~n~ deed ~ted N~er 21, 1905 ~ reco~d in ~k 299 of Dee~, page S93, di8~= =hereon Sou~h 89° 57~.Fgs= 533.41 fee~ f~ ~ H~t~terly coif'of sa~d 22.118 acre ~rac= ~n'2~e or~g~l. Westerly li~ o~ Bl~ey~ad; alo~ ~ S~=herly l~ne of sai~ 22.118 ac~. =~ct S~=h 89° S7' Wes2 200 fee~. Wes=~ly l~ne of said 22.~18 acre =rat= --4~st~2 11.h0 felt'Easterly ~les ~heref~m, 236.6S fee~, ~re or less, =o~ S~s=erly uo~r of ce~ain 5.333 ac~ 2rat= of 1~ c~ve~d~ ~ey Bi~ e= ~, =o T.L. Fe~dez ~deed ~=ed ~y 5, 1927 ~ reco~d~y 12, 1927 in Book 323 of Official Records, page 12~ =h~ce alo~ the Sou~rly line of said ~.233 acre tree= NotCh 89~ ~4' Ess= 200 fee~ ~ce p~alle1 ~2h said Westerly l~e of s~d 22.118 acre =rat= Sou=~rly 236.70 fee=, ~re or less, 2o =he ps,n= of be~ ~ bei~ a ~t of said 22.118 ac~ CracC in secCion 13 Co~s~p 7 SOU~, R~e 2 Wes=, M.D.B. & M. EX~I~ ~OM =he interest ~herein con~d in ~ Deed from ~n ~z~ e= ~ to the S~=a Clue' Co~-2y Flo~ Cont~l ~ Wa~er Co~e~a=ion ~ted Nove~er 20, 1961 ~ recorded F~a~ 1,' 1962 in Bo~ 5453 ReceSs, page 229, ~scr~d as Bei~ a ~r=~o~.of =he l~s o~ ~z~ as ~scribed in the deed ~ ~sario ~za~o, his wife, reco~ed in Book 1482, pa~e 421 Official of S~=a Cl~a Co~=y, ~n the No~heas= 1/4 of Sec=ion 13, To,ship ~ Sou~, ~e 2 West, M.D.B.& M., ~ ~re par=i~l~ly descried as follows: BSG~ a= the Souuheas2erly 9o~r of ~he 1~ of ~z~ as described aforem~=ioned deed~ throe alo~ the S~rly line of sa~d l~ds N. 89' 03' 20- W. 200.00 fee= =o ~ Sou~wes=e~y co,er ~reof~ thee alo~ ~e westerly li~ of sa~d 1~ N. 0· ~9~ E. 10.00 ~e=~ th~ce parallel to said S~rly line ~s=~ Northerly the~f~ 10.00 feet ~as~ a2 righ~ ~les S. 99· 02~ 20" E. 200.00 fee= to the Easterly line of said lines~ alo~ sa~d Eas=erly line S. 0· 59' W. 10.00 fee2 to t~ point of beg~, con=alOng .046 acres ~'1~, ~re or less. The basis of beari~ of ~s description is N. 89· 03' 20. W. as s~ on 1/16 section line on =he ~p of ~act 2248. ~O ~PT~ =herefro~ ~e ~e~ ~=~ or righ=s there~o w iCh ~ 'of s~face ent~, as grated to the City of ~pe~i~, ~ ~t deed recorded May 11, 1973 in Book 0373 pa~e 173 S~ta Cl~a Co~=7 Reco~, ~ove m~oned ~r~t doll ~t ~r.include ~ rlgBt to ~ter upon t~ mentioned l~s, or~ge ~7~ildi~ or s=~=~e ~hereon. EXHIBIT B-'l 2007~ De Palma Lane APN: 369-32-003 EXHIBIT A CITY OF' CUPERTINO · 10300 Torre Avenue, Cupertino, California 95014 DEPARTMENT OF COMMUNITY DEVELOPMENT REPORT FORM Application: 06-Z-01, 0S-U-01, 03-TM-01 (14-EA-01) Agenda Date: September 10, 2001 Applicant: R&Z Development · Property Owner: P~Z Development Property Location: 20075 DePalma Lane Project Data: General Plan Designation: MedJLow. Density Residential 5-10 d.u./gr.ac. Existing Zoning Desi. gn.afion: RI-10 Proposed Zoning Designation: P(RES) Gross Acres: 1.18 acre (51~02 sq~ feet) Net Acres: 1.04 acre (45,200 square feet) Residential: Dwelling units: 9 Unit type: attached units Site density: 8.65 d.u./gr, ac. Building Area: 21,901 square feet Site FAR: 48.5% Parking ratio: 4 spaces per dwelling Stories/Height: 2 stories/29' 4" Front Setback: First Story Second Story Rodrigues Ave: 22 feet ' 30 feet Regnart Creek: 15 feet 21 feet Side Setback: First Story Second Story East Side: 7 & 12 feet 20, 23 & 30 feet West Side: 25 feet min. 36 feet min. Project Consistency with: · General Plan yes Zoning n/a.. Environmental Assessment: Negative Declaration Application Summary: REZONING from RI-10 to P(RES), USE PERMIT to demolish an existing house and construct 9 single-family townhomes, and a TENTATIVE MAP to subdivide a 1.04-acre parcel into 9 townhome lots and I common lot. RECOMMENDATION: Staff recommends that the Planning Commission recommend to the City Council approval 'of the rezoning, use permit and tentative map per the model resolutions. -- BACKGROU1ND: Site Description: This project is located on a l~mnsnt 1+ ~ II~i~tlltlLr~ paI~l, with a single-family dwelling. The ~xisting home takes access off a private driveway/eas~m~t that extends ~o De Palina Lane, a private street. The parcel hn.~ public street fro~,ge on Rodrignes Avenue. The property is surrounded by a variety of residential types: to the west is a one and two-story single-family planned unit development, to the north are the Biltmore ap~ents, to the east are one-story duplexes and single-family dwellings and to the south is Regnart Creek and one and two story single-family dwellings. Project Description: The applicant is proposing ni~,. t~o-story townhomes (Exhibit A). There are three unit types ranging in size from 2,389 scl-are feet. to 2,464' sq,~e feet. They are all 3 bedroomS3 baths with a fourth room that may be used as a den or 4a bedroom. Two of the towahomes are directly accessible to Rodrignes Avenue, the others by a private driveway also offRodrigues Avenue. The project does not use De Palina Lane for vehicular access. Five of the townhomes have a 2- car garage and a 2-car driveway apron suitable for parking. The other four townhomes also have a 2-car garage with additional open parking available on the east or west perimeter. Onsite parking is equal to 4 parking stalls per unit. The project includes Wail impmvemenm along a segment of Santa Clara Valley Water Diattict right-of-way that encompasses Regnar~ Creek and an improved pedealxian pathway from Rodrigues Avenue to Regnart Creek. 'DISCUSSION: General Plan Conformance: General Plan residential density is calculated on the gross acre basis, which includes the ha!f- street areas abutting the property. The maximum allowable dwelling unit yield for this site is 11 units. Thc applicant is proposing 9 units which is still consistent with the C-eneral Plan density range. Staff feels this slightly lower density is warranted to meet other General Plan objectives, such as creating a site design that is compatible with the neighborhood, developing pedeai~ian connections to Cupertino's creek system and providing areas for sto, mwater q-a!ity mana~cmcnL Site Design, AreMteeture and Setbaelts: The project was.designed to provide both a strong street orientation and creek orientation with townhomes facing in both _tl!~.tions, which is the orientation of e~_'n$ residences on the east side of the property. This is important in creating an open community that fosters private interaction with the public realm. The front setback on Rodrigues Avenue appro~timsteS thc setback of the duplexes, and the second story bullttlng setbacks of the property edge units have been pulled back to increase privacy and improve the building mass relationship, with the neighboring one-story dwellings. The project has also been designed without side-facing windows that might look out on neighboring yards. The private, common open space area was _ ' moved toward the front to create an attractive visual amenity for Rodrigues Avenue, as well as an attractive trailhead to Regnart Creek. The tow~house ,nits were designed to encourage interaction with the public realm. Note the integration of porches and entrances in each of the ,nits facing the street and the creek. The units have a contemporary design with bard plank siding and stucco-stone veneer wainscoting, which offers a softer appearance than the typical stucco-sided dwelling. The applicant is also providing attractive entry features for the driveway and trailhead that match the waiuscoting of the townhomes. The City Architect, Larry Csnnon, has reviewed the project and found the design well done, with good balancing and detailing (Exhibit B). Mr. Csnnon bari One reservation with the distance between the open parking and the Regnart Creek-facing townhouses, which are the units likely to use this parking. The orientation of these townhouses was designed to turn this se~oment of Regnart Creek into an asset, rather than a liabi.lity; a place of public interaction end use, rather than a private, dl,mping area. Moving some of the parking to De Palina Lane or reorievfing the ' units will degrade the relationship between the creek and the townhouses. The walking distance · between the open parking and the units is not excessive and there a~ several different pathways between the two. Trees: An arborist report was completed for this project (Exhibit C). The arborist identified 16 specimen-sized trees on the property, l~.ight of them were recommended for removal because of poor to fair health and structure. All of these particular trees are fruit trees - part of the remnant orchard that was once on this property. Four of the other eight trees are slated for removal because there are in the footprint of the townhouscs or the driveway. They are: a multi-stem Buropean Olive, a 2-stem apple tree, agd two 15" diameter Southern Magnolias. To mitigate the tree removal, the applicant has proposed replacing the trees with 7, 24" box Coast Live Oaks; 10, 36" box Coast Redwoods; and 17, 24" box Birches. Stormwater Quality Management Improvements: The San Francisco Bay Area Regional Water Q~Ality Control Board is in the process of developidg more stringent regulations that will affect how local agencies review and monitor development projects. The objective of these regulations is to reduce storm water flows and lessen non-point source pollution in creeks and San Francisco Bay. The project incorporates a dry rock swale (in the common open space area near Roclrignes Avenue) e__h_~ will allow additional infiltration of sto~a~ water and its pollutants into the soil before it is divere, ed to a storm main. Neighborhood Outreach: The applicant sent notices to the surrounding property ovnm~ informing thorn of his proposed development. He met with those who responded to his notice. The applicant believes he has largely met the concerns of these neighbors. EncJosuFeS: Model Resolutions for zoning, use permit and tentative map Initial Smd), and ERC Recommep~fl~*ion ~.xhibit A: Applicant's Project Description ~xhibit B: Emailed comments from Larry Cannon ~hibit C: Arborist Rcport prepared by Tree Health Professionals, Inc. dated ?3 I/0 I Plan Set Prepared by: Colin Jung, Senior Planner Approved by: Stcvc Piasccki, Director of CommtmiV.! Devclopmcntq::~r..~.,_ ,4 CITY OF CUP]~TJNO 10300 To~ Iklmlnmt of CommmJ~ Dsvalopm~ Culmthto. Ci95014 408-7T/-3308 '~ ~ I~i.~,t~'~,:-~ · "-.~: ~,1'~.~' ,.,.. ':.. i~o~.,,.tj,~,~ /~/.~,,,~,~_., / ' PROJRC..T DESCRIFIION: p,.~.~.~s~,~u~a(a~.)/~_~ auildi~Cov~.~.~"~ ~.ist a~i~din~_s.r. '~pos=dB~d~. ~.f. ~ =-~0 ~o/~ ' If R~id~tial, UniWGross A~r~ ~/~ ,~ / Totsl~ R~ntsl/Ow- Bdrms T-fsi s.~. Pga," Unit #l Unit Unit. #3 Uni~ Unit - tpplioabl~ Speoial Area Plans: (~) ~ Monta Vim Dmitri Guid~lin~ [~] S. D, Am~ Cono~pmal ~ N. D~ Anza Co~cepn-,I ~ S. Sara-~--y Con~-pmal · r--1 .~l~wns Crk Blvd. Conc~'pmal I---'1 si=ye, ns Cr~k Bird. SW & b's~apa If Non-Residential, Building Area j.f. FAR Max. Hmployees/Shiff__ Parking Required ~-/~, ~'~- Parking Provided Project Sitz is Within Cupertino Urban Service Area YES I A) GENERAL PI, AN SOURCES D) OI.~E AGKNf?flm 1) ~m~lno Omml PLm, Ired Use ~lemaS ~) ~-~ ~ ~ 2)~~~~ ~m~l~ 21)~~ 10) ~ ~ P~~ ~)~ ~) ~s B) ~O~~ n)~~~S ~~V~W~ ~2)~~~ 14) ~ ~ (d~ ~) ~ ~E AG~ ~ I~Ci~N~~ 4~)~~~~ ~ ~-~-~ AG~ G) ~ ~m V~ W~ ~ ~ , 2~ ~ ~blJo W~ ~ 43) ~A ~-~-~ W~ ~ S~ _. 21)~r.~&~~ 's~ ~) ~ w~ ~li~ ~) ~j~ ~ ~ ~l~n M~ 1) Cb. mpl~i~ all information r~qu~mi on 4) When exp~sh~i,,$ any yes ~ label the tn~sl Study Cover pa~. T.~VR your answer clearly (Example "lq - 3 BLAlqK SPACES ONLY Wl~.lq A Hisioricaff) Please I~7 to respond concisely, SPECII~C ITEM IS NOT and plato as many APPLXCABT.I~.- · possibb on 2) Consult tho Initial Study Source List; use 5) Upon completins the checki;~, sisn and the m~at*-rhls Ustod thoroin to compleX, tho ~;?_. tho Pr~par~'s Affidavit checklist i,,¢ormation in Catesofios A throush O. 6) Please ~ff~.h the followiml mamlals You am ~ncourased ~o oit~ othor relevant City. sources; if suoh sources are us~t, job in their . ProJeci PJm .- title(s) in the "Source" oolunm nex~ ~o the tppnad,b) question to which they r~b_~., IH. S/RIi ~()IR INII'I \l. S'll I)~ 3) Ifyou check any oftho "YES" responso L'! :BMFI-I'~\I. IS ('OMi'I~E'I1.: - to an), questions, you must attach a shoot Itl '( explsini~g tho potential impact and suffgest [..: \! mitigation if needed. ~.~ / WILL ~ PROJECT... Not s~omt Stsumma :u~..~.Sw SOURCE Slfniflcsnt tYitisstion (Ho NO ~o~ Mmp/lon desi~,,,~ for tho subject silo in tho prumt land uso ortho sim o~ that of [] [] [] [] [] 7.12 eonfllundon of m established l) Increase Itu exbtins z~.,Mvd mia, or $,10 r~sult In tho mnoval of a ~'h~d ruour~ ~ [] [] [] [] such -- rock. snd, 8ravol, mos, minerals 2) ll~sultbthosulmantMdepletionof ,J~ [] [] [] [] any non-m2owablo ~h,,~l ruource? ~ ~ ~ ]EM? WILL ~ PROJECT... No~ Sima~nt s¥~cn~ Cundmive SOURCE NO ~' ~ D) ~AG~A~ Q~ 1) ~t h a ~ fleM b~ ~ ~i~, ~ ~ ~bli~ ~ ~7 ~t ~ ~o~ ~ Bo Io~ h a fl~ or W~LL TI~F~ PROJECT... Not SJsnifloant Sifnificant :mnulafive SO~C~ SJsnJflcsnt (Mitip~lou (No NO ~ [] [] I-I. [] endmsered q~cies o~plnnt o~ 4) lnvolvo ,,,,:::-,~, runo~! of to the sim or Jnlroduc~d? G} ~RTATION · 1) Camo an Jncw. aso In traffic which is substanthl in rolation to lbo oxisting · 2) Causo m~ public or prlvato 1Inet Jntme~ou to fnnction ~!~w Lovol of 4~0 p~ bL~clJm md vohlch$? [~ [] [] [] ~' 20,35 4) Advm~,b~ affect aCCeSS tO comrnmbd ~smblbh,~ls, public pedo~u~o ~ activity m? proJcct slt~? 6) Incrcase demand upon exhting pnrl'i-g fltctlltles, or .s~nd. dmnand fl~r ~ [] [] [] [] I,.16 ncw parking spacc? 7) Inhibit us~ of Mtc~natiw modu of usage? " HOUSING 1) RiMuco tbl~ supply of affordable housing in tho community, or result h the C~ [] [] O [] 3,16 displacomont ofporsons from 2) lnot~so tho oost o. fhousinl h tl~ 3, 16 ofho,,-sin[ ty~ found In Ihe WILL ~ PRO,TECT... SOURCE Not Sifnm~au~ $1gni~a:an~ O, nul~tvo NO ~ J) AIR QUALITY 2) Viol=*,- soy mnbknt sir qnllty ~mlml~, ,~,,~ ibum =~mMly m = [] [] [] [] [] 5,37.42 or expo~ scnsiflve r~ to 1) Increase submmblly ~o mbleat 2) l~sult in sustained incmlse in vicinity following conslmclion of~ ' 3) Rcsu]t in suaUd~d nolso l~vcls md doration limits coomined b Ibc City'. Noise Ordimmcc? L) 1) Be s~ variance wllh sppiicsbin 2) C~-_,~e__ sn testhetimdly of~nsivc ,it~ open to publin vL-*w? [] [] [] [] [] 1,17 3) Vtsuaily intrud,~ upon an stat of naUnl scenic qualitior? J~ [] [] [] [] ~.~ visible from ib~ vsll~-y floor'? ~ Ob~vctvi~soflheclty'ssdJsceag [~ [] [] [] [] '0.21.24.41 hillsidu fi'Om ~ld~n~l ~ orpablic 6) Adv=se. ly tf~c~ ~o architmum cht~ _~__~_ of n atablish .~J~orJwod or .~. [~]. [] [] [] busincss dJstfl~? 1,17,19 Ilshti~ sources Ul~a agi]aceag PrOPe~. 1.16 or publJu roadways? 33~1',~ TRF~ PROJECT... wot s~,~t sis,tricE, Cum,d,,dve SOURCE Sifnmunt (Mltipd(m NO P~ed) 2) ~ Mverfoly & properly ofhismriG~ [] t-~ [] [] I. 10,41 m' m~lmnd ,i~niflmm~ to ~ ~m.aity. ~ L--J ~.~.pt ns pn~t of a sctnnfifi*~ Mndy? O) PUBLIC ~VICF, S AND LTT~-q 2) ~_,_,~ sub.-'~---~lnl gmv4k, n~ dl~' I. 46,47 Ih* h~ ImFal~i~ ofm ---~? 3) Caum submmbl !,~(~ upoa. or G) Publi6 Schools? 29,30 [] [] [] [] 5.,7.,9.21 ") i~ of Public FaGilities? ~ [] [] [] [] 19~0,21 4) ~ ~ul~bm~d impact upon c) Wm~? 22 publi~ rm:t]l~ which camel thll h~l]ity' ~ [] [] [] [] lo rur, h o~ mcceod IU r,,,~,i~?. ~r.r. ~ PRO. IEC'I~.. YES NO I he.by cert/fy ~_t_ the infonnat/on provided in this Initial Study is true and cor~ct to the best of my knowledge and beUef; I certify ttmt I have nsed proper diligence in r~mnding achy to all questions herein, and have consulted apprupt ht~ suu~e ~eferenccs where ne~ to e~Te full and complete disclosure ofrelevent environmental dam. I hereby acJcnowiedge than any substantial errors dated within ttfis Initial Study may ~*q delay, or discontinuance of related project review procedures, and hereby agree'to hold hmnless the City of Cuperdnn* its staff'end authorized agents, from the consequences of~such dehy or dhconfinu~ce, Print Preparer's Name , . IMPACT AREAS: J~ Land Use/General Plan [] Geolo~ic,/Seismic l-i's~,md [] Resourccs/Parks [] Housins [] S~Wag~rat~ Quality [~, Drainage/Flooding ~ Flora & Fauna [] Transportation [] Histofical/Azchaeological [] Health & Safety [] Air Qnality [] Noise [] Pabli0Services/Utilifies [] Rheim, [] A~th~tics STAFF EVALUATIO]q On the basis of this Tn~tial Study, the Environmental Ravlf~v Committee 0LR. C) Finds: Setaet One. That the proposed proJect COULD NOT lave · si~ificant effect on the environment, and recommends that a NEGATIVE DECLARATION be granted. That although the project could lave a sisnificant effect on the environment, no siF, nificant effect will O~CUF r~ ' b~canse mitigation measures are included in the project. ERC recommends that a NEGATIVE DECLARATION be granted. That the proposed MAY lave a sJ~nificont eft%ct on the environment and recommends that an f/phnnin~nUtd,/4.doe CITY OF CUPERTINO RECOMMENDATION OF ENVIRONMENTAL REVIEW COMMITTEE August 8, 2001 · As provided by the Environmental Assessment Procedure, adopted by the City Council of the City o[' Cupertino on May 27, 1983, as amended, the following described project was reviewed by the Environmental Review Committee' of the City of Cupertino on August 8, 2001. PROJECT DESCRIPTION AND LOCATION Application No.: 0S-U-01, 06-Z-01, 03-TM-01, 14-EA-0] Applicant: R & Z Development (Glenn Cahoon) Location: .20075 DePalma Lane DISCRETIONARY ACTION REQUEST - Use Pv,,,,it (08-U-01) to constract 9 single-family townhomes on an approximately one acre pamel. Rezoning (06-Z-01) of an approximately one acre parcel from R1-10 to P(Res). Tentative Map (03-TM-01) to subdivide an approxiraately one-acre parcel into 9 parcels and a common area parcel for a townhome development. FINDINGS OF THE ENVIRONMENTAL REVIEW COMMITTEE The Enviro~nental Review Comruittee recommends the granting of a Negative Declaration finding tha~c,,ojTi~'yistTt with the G-eneral Plan and has no significant environmental impacts. Director of Community Development g/erc/RgC 14ca01 R ?Z '." DEVELOPMENT July, 2001 20075 DePalma Lane PROJECT DESCRIFIION Subject project is a 1.044 acre level site with access on DeP~lm. Lane offBlaney Avenue but also fronting Rodrigues Avenue near tha Cupertino City Offices at Torte and Rodrigues Av. Prescmly; an olde~ single family residence with detached garage and storage building occupy the site. The site ~ a remainder property once part of orctuuds and other agricultural uses. StttTouading properties consist ofplnnned unit single family ,,nits to the west; apartments and townhomes to the north; duplex and single fnmily nnits to the east; nnd single family homes across Regnatt Creek to the south. Zoning is ~ '.,~lbl.,~ with a C~eneral Plan designation of low to medium density residential use for tl~ potential development of approximately eleven units. / ,.." /1~1 - lC) Proposed development calls for a pJnnned development of nine single family residential high quality two story townhomes of crat~nnn style and front porches consisting of approximately 2,000 square feet each with three bedrooms, optional oi~ceYden, and three baths. An attached two car covered garage is to be included. Access to all ,nits will be from Rodrigues Avenue and include dedicated common ar~t \ for driveways, green belt n~eas, and a pedes~an/bicycle trail to Regnart Creek Two of the !,,,its will face Rodril~tes near.thc entrance to the project; three units with be located center to the project; and four units will front Regnart Creek. All nnlts will have private yards in the tear, side, or fzont depending on location within the project. The development will he landscaped in common areas as well as private yards thnt' are adjacent to tho. colnmon areas. I~ttldscaping, together with proselw~ttion of coftnln trees,, will be developed to provide for enhancement of the project and screening for adjacent properties. ' Development and landscaping of a trail access along Regn~rt Creek (Santa Clara Valley Water District) is proposed for pede.,Izian and bicycle access f~om Rodrigues Avenue through to Binney Avenue. 'I~ong term plnrming would provide for the trail's ultimate . connection to the City Offices and Library. BUS: 408-252-1101 · FAX: 408- 252-5435 ptL/ 1601 S. Re AnT:~ Rn, Ilmvm'rl · ¢h,~tn 1t31 · ~,,-,~ao;,-,,-, ~ol;*~,,~;o o~n'~M Exhibit: B Colin Jung ..... To: glenncahoon~home.com . ' Subject: ~ Townhouses at 20075 DePalma FYI From: Peter Gilli eent: Monday, August 27, 2001 8:27 AM To: Colin Jung Subject: FW: Townhouaea at 20075 DePalma Original Message--- From: Larry L. Cannon [mailto:cd~olan~ced3ell.nefl Sent: Friday, August 24, 200:!. 3:25 PM To: Peter Gilli Subject: Townhouses at 20075 'DePalma Peter I have reviewed the proposed nine townhouse design. It appears well i:lssigned from an architectural standpoint, and while the units are rather close together, some measures - such as recessing the garages on the "C" Units - provide more relief than we have seen on other similar proposals recently. The one question that I would have is really a City policy issue. That is the closing of DePalma to auto access and circulation. While there are other homes, it appears, with a DePalma address and entry, visitors to the "^" Units will need to park in guest parking spaces along the west property boundary and walk around to the DePalma side of the units. Other options short of extending DePalma through the site might be to provide some guest parking at the DePalma end of the site or by reorienting the entries of the "A" Units to the west elevation of the units to place them closer to the current guest parking. ' Other than this reservation, the design is well done with good balance and detailing. Since there was little to comment on for this proposal, I have not prepared a letter summary. Please let me know if you need a letter. Larry Page 1 ,' Exhibit: C ~ Tree Health ~ Professionals, Inc. TREE SURVEY FOR THE TREF_~ LOCATED -~?.,0075 DE PALMA LANE 'CUPERTINO, CALIFORNIA Prepared at the request of: IVlr. Mark Roberts General Partner R & Z Development 1601 S. De Anza Blvd., Suite 101 Cupertino, CA ~014 Site visit by: Paul Lamm, Jr. qualmed Arborist & Regist~ed Consulting Arborist ISA Certificcl Arborist July 31, 2001 137 E. Hamilton Ave., Suite 201 * Campbell, CA 95008 · (408) 929-3040 · Fax (408) 871-0284 TR{~ SURVEY FOR THE TI~{:~F.q LOCATI~ 020075 DE PALMA LANE CUPERTINO, CALIFORNIA July 31, 2001 Page2 ef 3 Assignment To evaluate the hcalth and condition of 16 ~s that have malastemsgr~ter than or ~qual to inches in diam~r mcasured at thr~ f~t above ground line orjast below the primary crotel~ All of the ~s were affixed with numbered aluminum disk and the numbers wer~ plaw~i on a copy of the Tentative l~p drawn by Giuliani & Kull, ln~, dated '7/9/01. ~a for eech tr~ is found in the ~20~75 1~ Palina ! ~ne Tr~ Survey" which is enclosed with this report. Recommendations for tr~ prc~ction are given as nece~mry. The ~s were not climbed and the evaluation was done from the ~uund. Summary ~the 16 tr~s, eight trees (~$?, ~8, ~9, 471, 4?2, 476, 477~ and ~81) ar~ in good enough health, with good enough structore such that they could be retained. Four ~f the eight tr~s (~471, 4?2, 4?6, and 477) will be loca~l in the f~otprint of new houses or the driveway and scheduled for removal. The driplines of the eight tr~s recommended for r~,~ntion are drawn on the Tentative Map. Tree Protection Recommendations Sp~ifications for preservation are r~erred to by letter in the ~Tr~ Condition & Prote~on '- Plan" and de~ibed below: A. P~move and/or prune tr~s as necessary prior to materials and ~quipm~nt arriving on si~. This would include raising foliar skirts, reducing or heading back foliage for demolition ~lnipm~nt aCCeSS. B. Wrap minks with ~ layers of wire I~th snow fencing to eight feet above ground line on trees where demolition or consUuction will take place within five feet of the mmic. C. Apply a two to three inch layer of wood chips under the drJpline of each tree in the area that is outside thc building envelope. D. Do a hydraulic sub-surface fertilization with either a 2-1-1, 3-1-1, or 3-2-2 high organic nitrogen fertilizer. Injection points should be on two foot centers under the dripiine. E. Erect construction period' fencing prior to materials and equipment arriving on site. The fencing'should consist of chain link fcuce that is a minimum of five feet in height and able to keep out even foot traffic. The fencing should be at the edge of the dripline, and/or the existing hardecape, and/or three feet outside the location of the new building wails. F. Pier and grade beam found~6on should be consUucted to minimize root damage and loss. Dig pilot holes with hand tools to a depth of 18 inches at the location of each pier. If roots larger than three inches are encountered then move the pier location to avoid severing roots of this size. Finisbed depth can be excavated with a mech~mi~! anger. (3. I suggest that a q-*lifted arborist be retained to supervise any excavation below existing g~cle and within the dripline of each tree to be retained. Roots damaged during excavation should be pruned and ueated per the specification found in this reporC H. I suggest that monthly irrigation should be done during the redevelopment of the property' and during the months of May through October. I. I suggests that a hydraulic soil injection of a high organic nitrogen fertilizer be done once a year during the redevelopment period to promote root growth and reduce sue. ss. Once again, the .- time period would b~ May through October. Care of Damaged Roots If any roots over three inches in diameter are severed during any excavation the following TRRI:~. SURVEY FOR THE TI~F.I~_~ LOCATED ~20075 DE PALMA LANE CUPERTINO, CALIFORNIA July 31, 2001 Pa~3 o~3 procedure should be followed: 1. The roots should be shsded by immediately covering the entire Irench wi~h plywood, or by covering the sides of the ~rench with burlap shceiing kept moist with twice a day wellings. 2. When ready to backfill, each root should be severed clesnly with a hnndsaw. Where praciical, ~hey should be cut back to a side root. Immediately, a plaslic bag (or wrap) should be placed over this fresh cu~, and secured with a rubber band or electrical ~ape. Respeclfully submit'd, Gil MiW. hell, RCA ISA Celtified Arboris~ enclosures: 20075 De Palina Tree Survey Sla~ement of Limiting Condilions Tentative Map, drawn by Giuliani & KUll, Inc., da~ed ?/9/01. 20075 DE PALMA LANE TREE SURVEY lap Loc. Tree Species Trunk Retention Status Number Common Name Dia(') 03' Keep Remove Tree Condition & Protec'don Plan 467 Magnolia soulangiana 10.S · 12" X Average health and structure. A foiiar crown Saucer Hagndiia Multi** reduction on the west side will be needed. A, C, D, E, G, H, I 468 Lagerstroemia sp. 10 X Average health and structure. A foliar crown Crape Myrtle reduction on the west side will be needed. A, C, D, E, G, H, I 469 l.a~erstroemia sp. 10 · 22" X Very good health and s~dcture. A foliar crown Crape Myrtle Multi** reduction on the west side will be needed. A, C, D, E, G, H, I 470 Prunus sp. 24 O 18" X Poor health and structure Cherry Multi** 471 Olea europeea 5 stems* X Average health and structure. Scheduled for European Olive Multi** removal 472 Ha/us sp. 11 · 20" X Ve~ good health, average structure. Scheduled Apple Multi** for removal. 473 Prunus sp. 1S.S 0 12" X Poor to fair health and structure Cherry Multi** 474 Persea americana 19 O 22" X Poor health and structure Avocado Hulti** 475 Prunus sp. 22 O 26" X Poor health and =bdcture Cherry Nulti** 476 Hagnolia grandiflora I 5 X Very good health and structure. Scheduled Southern Magnolia for removal. 477 Magnolia grendiflora 15 X Very good health and structure. Scheduled Southern Hagnolia for removal. 478 Persea americana 24 X Aerage health, very poor scaffold limb Avocado structure. 479 Prunus sp. 18 O 24" X Fair health and structure Almond Multi** 480 Prunus sp. 17 · 20" X Poor health and structure Almond Multi** 481 P/nus tad/ara 32.5 X Average health and structure. The foundation Monterey Pine of Lot 7 should be pier and grade beam on the south side of the house. A, B, C, D, E, F, G, H, I 482 Persea amer/cana 19.5 O1 S" X Poor health and structure Avocado Multi** · Stems measure 6.5, 6.5, 6.5, 5.5, and 4.5 ~ 3' above ground line. · *The malnstem branches into two or more stems above the height indicated. Example: 19 (~ 22" means that the ma/nstem branches above 22 inches into two or more stems. Tree Health rofessionals, Inc. Statement of Limiting Conriitions Please note: Recommendations given by Gil Mitchell of Tree Health Professionals, Inc. are based upon research and' recommendations from the agriculture and horticulture departments of major universities in the United States, primarily the University of California, and also the International Society of Arboriculture. Due to the variability and unpredictability of plant materials, hidden defects, soils, climate, workmanship and other, factors, Gil Mitchell of Tree Health Professionals, Inc. can make no warranty express or implied regarding any recommendations given. The owner or person(s) responsible for implementing any recommendations given by Gil Mitchell of Tree Health Professionals, Inc. assume all risks involved, and agrees to indemnify Gil Mitchell of Tree Health Professionals, Inc. and hold Gil Mitchell of Tree Health Professionals, Inc. ha,aless from any loss, cost of damage, including but not limited to attorney fees and defense, costs of claims by the undersigned or third parties. Regarding trees: The measures noted within this report are designed to assist in the protection and preservation of the trees mentioned in this report; and to help in their short and long term health and longevity. This is not however, a guarantee that any of these trees may not suddenly or eventually decline, fail, or die, for whatever reason. Because a significant portion of the roots are far beyond the dripline of the tree, even trees that are well protected during construction often decline, fail or die. Because there may be hidden defects within the reot system, trunk or branches of trees, it is possible that trees with no obvious defects can be subject to failure without warning. 137 E. Hamilton Ave., Suite 201 · Campbell, CA 95008 · (408) 929-3040 · Fax (408) 871-0284 Planning Commission Minutes IS September 10, 2001 Exhibit: B (3om. Auerbach said he felt they had an obligation to the businesses to be able to conduct business · ~ some r~asonable eXl~C:~ation of being able to have a hearing date and have a decision Mr. Jung stated that they were in negotiations with a consultant relative to the master plan, it could take six months to a year before something is approved. He said he felt waiting that' of time was unfair to the applicant and was not a pro business stance for Cupertino. id that he agreed in essence, that the project should not be delayed because it is not the ~ master plan is not in place. Mr. Swarner MetroPCS' schedule is to get their network on air by January; they bare been tied up in the for 4 years and purchased the licenses from another company. He said they would have to study in'two weeks, lie commented that placement of the trees farther away from the : the trees. He said they would prefer to use natural vegetation in case as they did not feel the site could accommodate a larger size monop~le. Com. Patnoe suggested pu~ting trees on the site as well as the'artificial tree with antenna to visualize which MOTION: Com. Patnoe moved to Application No. 07-U-01 to the September 24, 2001 Commission meeting to allow for the preparation of a feasibility report. SECOND: Com. Corr VOTE: Passed 5-0-0 7. Application Nos.: 0S-U-01, 06-Z=01, 03-TM-01 (14-EA-01) Applicant: R & Z Development Location: 20075 De Palina Lane Use permit to construct 9 single family townhomes on an approximately one acre parcel. Rezoning of an approximately one acre parcel from RI-10 to P(Ras) Tentative map to subdivide an approximately one acre parcel into nine parcels for a townhome development. Tentative Cit~ Council Date: October 1, 2001 Staff oresentation: Mr. J'ung referred to a map and site plan and reviewed the application. He reviewed the site design, architecture, setbacks, sitedescription, project description, and landscape plan (including the stormwater quality management improvements) as outlined in the staff report. Staff recommends approval of the project; the negative declaration has been recommended by the Environmental Review Committee. Mr. Sung said there was no gate as part of the proposal. Relative to the proximity to the creek, the water district has an unimproved service road they use to maintain the creek, and have indicated that they do not need additional right-of-way to carry out their functions, and are willing to enter into a joint use agreement with the city relative to the use of the space. He said it not only serves their needs but any other recreational needs the city may be interested in. _ Mr. Sung said the 100 year flood is contained within the channel known as Regnart Creek in this location. He said there have unfortunately been instances where development has been allowed Planning Commission Minutes 16 September i 0, 2001 with back yards abutting the creeks (November Drive). He said he did not foresee how the creek would be restored to a more natural state unless the development was set back literally. He said there was no safe distance away from a creek that is allowed to run its course enduring light and heavy flows. Chair Kwok recalled that for the November November Drive project, as part of the conditions, they established rchab funds for the creek and used rip rap to stabilize the creek. He questioned whether the creek was stabilized now. Mr. lung said that unlike November Drive, the creekwas in a semi natural state that had been channelized with gabion baskets. He said there were. not problems with erosion at that location, but as Com. Auerbach stated, there is a retaining wall that was probably put there to forestall any future erosion. Mr. lung said that there was no established setbacks in residential areas; only in hillside areas. He reitera.md that they were dealing with a planned development where the setbacks were negotiated betweeh the applicant and the city, He said the area was wide enough for a public trail and staff did not feel the need to extend the width, noting that the width was similar both further east and west. Mr. ,lung referred to the Preliminary Grading Plan and answered Planning Commissioners' questions regarding the storm drainage system. Ms. Carmen Lynaugh, Public Works, said it appeared the downspouts were going into a system but would pop up and go into the drainage swale. It will not go directly to the street system because it is prohibited; storm leaders cannot go directly to the storm drainage system, but they are going to use this percolation to take care of the flows from the roofs. Mr. Glenn Cahoon, project designer; referred to the preliminary grading plan, and explained the drainage drainage system and answered Commissioners' questions. He also illustrated the location of the retaining walls and reviewed the landscape plan. Referring to the landscape plan, Mr. Cahoon said there were some trees they would have to remove because they were in the footprint or driveway areas; and noted that 24 inch box trees would be planted. He illustrated the screening to protect the neighbors. In response to Com. Chen's questions about parking, Mr. Cahoon reported that each unit had a two-car garage, with an apron in front for guest parking. He illustrated where the guest parking would be and noted the location of the pathway to the units. Mr. Cahoon reported that there were no windows or decks on the side to comply with the privacy act of the neighbors. Relative to the location of the chimneys, and Com. Patnoe's concern, Mr. Cahoon said that if necessary, the chimneys could be deleted and the direct vents could be used. He noted that fireplace manufacturers make a variety of styles, but most are designed with the gas log, and have taken it a step further by creating the direct vent to address the building code for having fireplaces in bedrooms. He pointed out that chimneys are an architectural feature which set a period and are not a function. Chair I{.wok opened the meeting for public input. Mr. Dan O'keefe, 34 Paseo Alba, San Clemente, CA., read from a prepared text. "1 oppose tile development and intend to offer my reasons for traveling from Southern California to speak against it. Of course I want to express care for the best interest of the applicant, but I also want to express the same care as a returning resident relevantly affected by the development. Both sides can be served by lower density. This being said, I begin by distinguishing the similarities and Planning Commission Minutes I? September I0, 2001 differences between the RSE development and existing units in the south side of Rodriguez .--. Avenue. The RSP- development puts 21,000 square feet of living space on approximately one acre; four existing Rodriguez duplexes on approximately one acre puts approximately 12,000 square feet of living space on one acre. These figures were worked out today by Mr. Oatti, (a member of the Planning Department) and myself. The RSE development has 2 feet of landscaping fronting Kodriguez and two driveways, which means one third of the landscaping is not facing Rodriguez Avenue. I contend that this is a traffic h~7~rd, a phantom image of a PUD, 33% of the landscaping fronting Rodriguez is lost; the existing duplexes, two pleat developments and the PUDs devote 20 feet setback to landscaping two feet by this development. The proposed fence facing Rodriguez does no more than devalue and debase the existing property on Rodriguez. The RSE proposal in my opinion warrants denial. There is no two story triplex on Rodriguez Avenue and this development has a two sto~y triplex. The moral grounds for denial of this application is a sea of asphalt and I believe it is neither vague nor ambiguous; it is crowded, very dense. As you know, the southside of Rodriguez was divided between low density and high density for 36 years. This h~s been a divide where there are duplexes and not high density on the south side. As a former Planning Commissioner and member of' the City Council, that came before us constantly, and I object to the fact that'the Planning Director compared the south side with the north side and compared this development with the Biltmore Apartments and the fact is that this is going to be subsidized in my opinion by street parking. There is no way that 21,000 square feet on one acre is going to have the kind of parking spaces that it needs, the aprons, etc. and in my opinion from my experience, I believe that there is going to be fences there and I believe that there is going to be a setback problem and I think that this should be reduced at least by 2 to 3 units. I would also say that the amenity park has great delights, pleasures; when I listened to the applicant I felt that we were talking about Versailles. We are talking about one acre with really minimum setbacks and _. there are problems and the problems are with the creek. The problems are with Rodriguez, cars are going to back out of the developments on Rodriguez with a two foot setback on Rodriguez and that is going to create a traffc hn=~rd. I would also say as I looked at this development, it states in this application there will be no incr&ased traffic h~z~rds. I say there will be; driveway backing cars right out to Rodriguez; Obstruct views ... I believe the chimneys and those buildings are going to obstruct views with the duplexes to the west; and adversely affect the architectural character. I think this is a breaking of a very significant line; the south side of Rodriguez and again for about 16 years on the City Council, as a mayor and a Planning Commissioner, Rodriguez set precedent, you did not have high density on the south side of Rodriguez and to compare again as the Planning Director did, with the Biltmore Apartments, is wrong. And the chimneys, I think it looks like a Welsh coal camp in my opinion and is a PUD in my opinion, I believe it is a boile~late in my opinion. I have never heard on my 16 years on the City Council a marriage between a Planning Director and an applicant. He should have said that there are 21,000 living space compared to 12,000 with the duplexes, and I want to say again that the residents around Rodriguez are going to subsidize this and you are going to have before the Planning Commission an application to add 24 hour parking on Rodriguez. When I was on the City Council and on the Planning Commission we used to go to seminars on public safety; and as I recall public safety was a big issue in terms of design. As I look at this design I believe that it has many problems in terms of public safety. Access from the trails is going to be a factor and the other factor is going into the interior, anybody that gets into the interior is going to be more safe and this factor makes' this density. I would like to see the development; I think it should be developed, but to say that be is going to clean up transmissions and other problems, is something that I don't think the city of Cupertino would every allow. I am returning resident and I hope never to see you again to _ because you are not going to approve this and I feel that it does need some work, and I would hope Planning Commission Minutes Ig September 10, 2001 in thc future that thc Planning Director would put out the pertinent facts. Thank you for your attention; its really great to be back here, but attendance is Iow." Dr. Richard Popejoy, welcomed back previous mayor Dan O'l~eefe, and urged the Planning Commission to take Mr. O'Keefe's comments to heart, since he felt things that are happening now are pertinent to the comments made. He said certain issues of building the south side, the north side were always in tact. He said he felt it does not make a difference where the building is now, the creeks will overflow; and although there weren't supposed to be overflows and storms such as the ones they have had, Bollinger Road overflows every couple of years: and 100 year flood concerns have now become 5 year flood concerns. He said the markers should be used to show the neighborhood residents what is, going to be built, so they can provide input and voice their opposition if necessary. Dr. Popejoy said that Mr. O'.K. eefe's projections on traffic were on target, and he felt there would be a request for more parking and parking across the street in the Biltmorc Apartments. The creeks can overflow and do routinely, and none of the figures will indicate that information. He said he felt there were too many units, and 4 or :5 would be more appropriate with more green area. He said every time they cover another square foot, it increases the problems. Mr. Dennis Whittaker, said he was concerned about the quality of life. He referred to the traffic on Rodriguez and said that if9 units are built on the parcel, there will be 36 more cars driving up and down Rodriguez. He said that Blaney is overused and Pacifica traffic is cut off during school hours and new units on Rodriguez would create even more traffic. He expressed concern about developing Town Center and making Pacifica and Rodriguez less traffic friendly, but more pedestrian and bicycle friendly. He said with the added cars on Rodriguez it would create traffic paralysis. Mr. Whittaker said that he was not anti-growth, but was concerned about where to put the teachers and city workers because of the affordability issue. The city tries to get more people who cannot normally afford to live in Cupertino, and with this application, they are missing out on a BMR unit· He encouraged the Planning Commissioners to drive on Rodriguez to see the impact of 36 more cars. He urged that if Town Center goes through, not to block off0r restrict Rodriguez and Pacifica traffic as it would negatively impact the area. Mr. Liu, 2172 Rodriguez Avenue, expressed concern about temporary storm drainage and tile public walkway. He questioned if they put the drainage in the corner, if it would increase tile water level of his house, and how they would assure that would not happen. He expressed concern also about the public walkway next to his back fence and how it would impact his back yard privacy;. Chair Kwok closed the public hearing. Chair Kwok said he felt that 9 units were too dense. Mr. Jung said thatthe maximum dwelling unit yield for this site, between the creek.and Rodriguez is planned at a density of 5 to 10 dwelling units to the gross acre. If it were to build out at the maximum density, the yield would be I I and they are proposing 9. He said it was not the case that they were building less.than ten units to avoid the BMR unit, but that the primary concern was to create an asset for the community and to provide it with a well designed project that provides public accessibility to the creek and the'only way to create a nice entrance and provide public accessibility was by not overcrowding the units on the project site. Also, the second story was pulled back from the first story developments and all the design considerations and amenities shown resulted in one fewer unit. Mr. Piasecki clarified that the setbacks on Rodriguez closely match the setbacks of the existing duplexes and · said that the area behind the Iow wrought iron fence would be landscaped with lawn and rose Planning Commission Minutes 19 September 10, 2001 bushes, etc. The interest in putting in the low fence was to get a pedestrian level detail built into the project from the very beginning and not just have the blank spaces that occupy area in front of homes or in front of the duplexes. The BMR. program as it relates to the proposed project was discussed. Mr. Piasecki said that the in-lieu fee is not comparable to the cost of the unit, $1 per square foot, which is something the city has to resolve. The BMR program is what it is; ten is the dividing point. When staff worked with the applicant, they did not want him to attempt to shoe in the tenth or eleventh unit, and not have the kind of amenities he is proposing. Design and integration wit the neighborhood is the first priority. He said with small parcels like this when you are on the edge of the yields, he would not encourage somebody just to simply get one BMR unit, to shoe hem it in. Chair Kwok reiterated that he felt it was meant for mediuni and Iow density, and nine units was too dense. There was consensus that density and the BMR unit were issues of concern. Mr. Charles Kilian, City Attorney, clarified that if they wanted the threshold question as density, it was important that they be'consistent for the next nine unit development that comes in. He said it was a question of consistency, as how do you decide that this development should far and above exceed what is required and not another development, Com. Auerbach pointed out that they had just concluded a study session where the opportunity was afforded to change the housing element relative to the threshold level. He pointed out that during the discussion, there was no objection to ten units and no changes were made. Chair Kwok said he felt it was not the BMR unit, but the density, since it would not be a Iow market rate house. He said it was important to have consistency relative to approving and denying projects where there was only slightly more than one acre. Discussion ensued relative to R1-10 zoning, Chair Kwok said that the compatibility with tile neighborhood also has to be considered. Coms. Auerbach and Corr agreed that the time to dispute the density is at the zoning stage, not when applicants come to present projects. If members of the public have issues with zoning and they think the zoning is too dense, it needs to be addressed at the zoning issue rather than projects when they come before the Planning Commission for · approval in areas that meet the zoning requirements. He said he also felt that the project fits within the scope; was an exemplary project, and meets many of the criteria for walkability, accessibility to the Creeks, exposure to natural features, and meets the conditions for increasing the housing stock in the community which supply and demand will lead to some mitigation of the housing prices over time. It is completely compatible with the zoning that exists. Com. Patnoe said he had a point to make relative to the housing stock. The applicant used the word "infill" and it was time to stop looking at the word "infill" as a bad word. He said he was not opposed to the nine units, and was pleased with the project. He said it was unlikely that 4 parking spaces per unit were needed, and he did not feel the density would present a problem. He reiterated his concern about the chimneys, especially the two on the street. He said that the applicant could be requested to eliminate the chimneys or modify the ones on the street side. Com. Auerbach noted that the applicant said they would install non-sealed gas burning units which required chimneys, but if necessary, he would put in sealed gas units which would not require chimneys. Com. Auerbach said he felt the applicant had to sell the units and was aware of what Planning Commission Minutes 2o September 10, 2001 the marke~ demand was; and Larry Cannon did not object to the chimneys. He said the decision should be lef/up to the applicant and Larry Cannon. Com. Chen said she was pleased to see a good design for Cupertino including efforts to meet all the requirements and all the conditions developed over the years to increase the walkability and build a pathway to increase the connectivity with the neighborhood. She expressed concern with the impact of the density on the quality of life as one of the speakers had commented on; notiqg that the impact was on the parking spaces and the potential problem with on-street parking causing safety issues for the neighborhood residents. She asked how the traffic report addressed the potential increase in traffic and how to address the safety issues and parking issues for the particular development. Com. Ch~n said she would like a parking analysis before she would support the proje.ct. Mr. Piasecki said that a parking analysis was possible, but noted that providi, ng 4 spaces per unit was standard for a. single family development; and questioned whether Com. Chen was considering more of less spaces. Mr. Piasecki pointed out that the recent development on Imperial Avenue with 3 spaces per unit, and there was a traffic study completed. He said he was comfortable with the requirement of 4 spaces per unit,and commented that it might be considered excessive. Mr. Jung said a traffic report was not done because of the small number of units. He pointed out that the net number of units is actually 8 and not 9, because of the existing unit there. He said typically an 8-unit development generates very little traffic; using standard factors it is I 0 trips a day, or 80 trips in and out of the project. Com. Corr said that although only a small impact, they add up to a bigger impact. Mr. Piasecki stated that it was is the purpose of the General Plan when 5 to I0 dwelling units per acre are assigned and a traffic analysis is completed. Chair Kwok said he had reservations about the density of the project and the traffic generated, particularly Rodriguez, although the General Plan does designate it as $ to 10 units, but it does not mean that you can build up to 10 units, the same as it does give the flexibility of 5 to 10 units. He said the compatibility with the neighborhood on one side of the street should be addressed. Chair Kwok said it was a beautiful project, that provides trail and open spaces in the back, with a good design, but he said he would not support the project with 9 units as he felt it was too dense. Com. Auerbach said he felt 4 parking spaces may be excessive; and said he felt it was demonstrable that if more cars were parked on the street, it would slow down traffic and it would become safer for both cars and pedestrians. He said he would like to take advantage of more on- street parking and pave less of the complexes in the future; and it was his goal bias to have fewer parking spaces rather than more and utilize more of the city's infrastructure. Mr. Piasecki said that the issue was discussed relative to Rodriguez and noted that when there is limited or no on-street parking, high speeds can be achieved on the street. He pointed out that the new urbanists' principles and smart growth principles are talking about putting parking back on the street, which slows traffic down. Relative to the chimneys, there was consensus to let the applicant make the decision. MOTION: Com. Auerbach moved approval of Application 06-Z-01 SECOND: Com. Corr NOES: Chair Kwok VOTE: Passed .4-1-0 Planning Commission Minutes 21 September I 0, 2001 Chair Kwok said he felt the project was not compatible with the neighborhood. MOTION: Com. Auerbach moved approval of Application 08-U-01 SECOND: Com. Corr NOES: Chair Kwok VOTE: Passed ' 4-1-0 MOTION: Com. Aucrhach moved approval of Application 03-TM-01 SECOND: Com. Corr NOES.: Chair Kwok VOTE: Passed 4-1-0. MOTION: Com. Auerbach moved approval of Application 14-EA-01 SECOND: Com. Corr VOTE: Passed 5-0-0 The application will be forwarded to the City Council for final decision. OLD BUSIly: None NEW BUSINESS~None REPORT OF TI~. ~qNING COMMI~SION: Environmental R~view Committee: Chair Kwok reported that a meeting was scheduled for September 12th for the hh~ng element. Housing Committee: ~. Patnoe reported a meeting is scheduled for September 13th. Mayor's Breakfast: Com.~oe will attend the September 11th meeting. DISCUSSION OF NEWSPAPER CLII~INGS: Mr. Piasecki said he had no additional reports, other than noting the a. rtic_le a. bou_t the Co/~ty's suggestion and possibly taking up an ordinance limiting the h°use siz~ in_Garden Gate' __ ~ ' ADJOURNIVIENT: The .meeting adjourned atX4~0:07 p.m. to the regular Planning Commission meeting at 6:45 pm. on September 24, 2001.' Respectfully Submitted, Elizabeth Ellis -- Recording Secretary ORDINANCE NO. 1887 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO REZONING A 1.04-ACRE LOT FROM RI-10 TO P(RES) TO ALLOW 9 SINGLE- FAMILY TOWNHOUSES LOCATED AT 20075 DE PALMA LANE WHEREAS, an application was received by the City (Application no. 06-Z-01) for the rezoning of property to P(RES) (Planned Development Residential Zoning District); and WHEREAS, the property is presently incorporated and within the City's urban service area; WHEREAS, the zoning is consistent with the City's general plan land use map, proposed uses and surrounding uses; WHEREAS, the zoning will enable the property owner to develop his property in accordance with City residential development standards; WHEREAS, upon due notice and after one public hearing the Planning Commission recommended to the City Council that the rezoning be granted; and WHEREAS, a map of the subject property is attached hereto as Exhibit B-1 as a proposed amendment to the Master Zoning Map of the City of Cupertino.. NOW, THEREFORE, BE IT ORDAINED AS FOLLOWS: Section 1. That the property described in attached Exhibit A-1 is hereby rezoned to P(RES), Planned Development Zoning District; and that Exhibits A & B attached hereto are made part of the Master. Zoning Map of the City of Cupertino. Section 2. This ordinance shall take effect and be in force thirty (30) days after its passage. Ord/nanccNo. l$$7 ..- INTRODUCED at a regular meeting of the City Council of the City of Cupertino the 1 st day of October 2001 and ENACTED at a regular meeting of the City Council of the City of Cupertino the day of ,2001, by the following vote: Vote Members of the City Council AYE S: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: City Clerk Mayor, City of Cupertino 2 City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 OTY OF (408) 777-3251 CUPEILTiNO (4os) Commu~ty Development Department Housing Services Summacy Agenda Item No. i ~ Agenda Date: October 1, 2001 A~PLICATION SUMMARY: TENTATF¢~ MAP to subdivide a 4.15-acre l~arcel into 56 townhome parcels and one lot held in ¢onLr~on. RECOMM~TDATION: The ?iauuiug Commission recommends approval of: 1. The negative declaration, file number 06-EA-01 2. The tentative map app]Jcatiou, file number 02-TM-01, ~ accordance with the Planning Commission Resolution No. 6 ! 09. PROJECT DATA: Application: 02-TM-01, 06-EA-01 Applicant: SummerHill Homes Property Owner: RWC, LLC Property Location: 10120 Imperial Avenue, between Granada and Olive Avenues General Plan Designation: Light Industrial/Residential Zoning Designation: ML Light Industrial Acreage (Gross): 4.2 gross acres Density: 13.5 du/gr, ac. Project Consistency with: General Plan: Yes Zoning: Yes Environmental Assessment: Negative Declaration BACKGROUND: On August 20, 2001, the City Council approved a 56-unit townhome development on Imperial Avenue between Crrnnsas and Olive Avenues. The Planning Commission rccommcndcd approval of the project on July 23, 2001. The proposed tentative map facilitates redevelopment of thc site and will allow thc townhomes to be sold separately. G:~PI .nnln ~PDR.EPOR'IACCAcc02111101 .doc Printed on Recycled Paper lO--{ DISCUSSION: The subdivision design conforms to the usc permit development plan approved by the city council on August 20, 2001. The tentative map has been revised to include all public easements necessary for maintenance of the pedestrian pathway and the mini-park located at the front of the development. Easements allowing the public to access to the pedestrian paths have also been included in this tentative map. Prepared by: Vera Gil, Senior Planner S~b~d~by: f~ Approved for Submittal: David W. Knapp Director of Community Development City Manager Enclosures: Planning Commission Resolution No. 6109 Initial Study Negative Declaration Tentative Map, 2 sheets G APlanning~PDREPORT~CC~cc02tm01 .doc 09--TM-O1 - C1TY OF CUPERTINO 10300 Tone Avenue Cupertino, California 95014 RESOLUTION NO. 6109 OF THE PLANNING COMMI,qSION OF THE CITY OF CUPERTINO RECOMMENDING APPROVAL OF A TENTATIVE MAP TO SUBDIVIDE A 4.15-ACRE PARCEL FOR A 56 UNIT TOWNHOME DEV~.I OPMENT SECTION I: PROJECT DESCRIFrlON Application No.: 02-TM-01 Applicant: SnmmerI-Iill Homes Location: 10120 Imperial Avenue SECTION 1I: FINDINGS WHEREAS, the Planning Commission of the City of Cupertino received ail application for a Tentative Subdivision Map as described in Section I of this Resolution; and WHEREAS, the necessary public notices have been given as required by the Subdivision and Procedural Ordinances of the City of Cupertino, and the Planning Commission has held at least one public hearing in regard to the application; and WHEREAS, the applicant has met the burden of proof required to support said application; and has satisfied the following requirements: a) That the proposed subdivision map is consistent with the City of Cupertino General Plan. b) Thiit the design and improvements of the proposed subdivision are consistent with the General Plan. c) That the site is physically suitable for the type and intensity of development contemplated under thc approved subdivision. d) That the design of the subdivision or the proposed improvements are not likely to cause substantial environmental dsmsge nor substantially and avoidable injure fish and wildlife or their habitat. e) That the designs of the subdivision or the type. of improvements associated therewith are not likely to cause serious public health problems. f) That the design of the subdivision and its associated improvements will not conflict with easements acquired by the public at large for access through or use of property within the proposed subdivision. o-3 Resolution No. 6109 02-TM-01 September 24, 2001 Page 2 NOW, THEREFORE, BE 1T RESOLVED: That after careful consideration of maps, facts, exhibits, testimony and other evidence submitted in this matter, the application 02-TM-01 for a Tentative Map is hereby approved subject to the conditions which are enumerated in this Resolution beginning on page 2 thereof, and That the subconclusions upon which the findings and conditions specified in this Resolution are based and contained in the Public Hearing record concerning Application 02-TM-01, as set forth in the Minutes of Plann/ng Commission Meeting of September 24, 2001, and are incorporated by reference as though fully set forth herein. SECTION to: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPT. 1. APPROVED EXI-U~ITS Approved is based on the approved plans, entitled "Tentative Map", prepared by Brian Ksngus Foulk, dated 9/18/01. 2. NOTICE OF FEES. DEDICATIONS. RESERVATIONS OR OTHER EXACTIONS: The Conditions of Project Approval set forth herein may include certain fees, dedication requirements, reservation requirements, and other exactions. Pursuant to Government Code Section 66020(d) (1), these Conditions constitute written notice of a statement of the amount of such fees, and a description of the dedications, reservations, and other exactions. You are hereby further notified that the 90-day approval period in which you may protest these fees, dedications, reservations, and other exactions, pursuant to Government Code Section 66020(a), has begun. If you fail to file a protest within this 90-day period complying with ali of the requirements of Section 66020, you will be legally barred from later challenging such exactions. 3. ROAD MAINTENANCE AGREEMENT: A reciprocal maintenance agreemcnt shall be required for ail parcels which share a common private drive or private roadway with one or more other parcels. Said agreement shall be recorded in conjunction wi'th recordation of the final map, and shall be subject to prior approval as to form and content by the City Attorney. SECTION IV: CONDITIONS ADMINISTERED BY THE PUBLIC WORKS DEPARTMENT 4. STREET WIDENING: Street widening, improvements and dedications shall be provided in accordance with City Standards and specifications and as required by the City Engineer. 5. CURB AND GUTTER IMPROVEMENTS: Curbs and gutters, sidewalks and related structures shall be installed in accordance with grades and standards as specified by the City Engineer. g:/pla~niag~l~'epon~'e.~2-TM-Ot ~s. doc Io-- Resolution No. 6109 02-TM-01 September 24, 2001 Page 3 6. STREET LIGHTING INSTAT.T.&TION: Street lighting shall be installed and shall be as approved by the City Engincer. Lighting f~tures shall be positioned so as to preclude g~are and other forms of visual interference to adjoining properties, and shall be no higher than the maximum height permitted by the zone in which the site is located. 7. FIRE HYDRANT: Fire hydrants shall be located as required by the City. 8. TRAFFIC SIGNS: Traffic control signs shall be placed at locations specified by the City. 9. STREET TREES: Street trees shall be planted within the Public Right of Way and shall be of a type approved by the City in accordance with Ordinance No. 125. 10. GRADING: Grading shall be as approved and required by the City Engineer in accordance with Chapter 16.08 of the Cupertino Municipal Code. 401 Certifications and 404 permits maybe required. Please contact Army Corp of Engineers and/or Regional W~¢r Quality Control Board as appropriate. ll. DRAINAGE: Drainage shall be provided to the satisfaction of the City Engineer. Sudace flow acwss public sidewalks rosy be allowed in the R- 1, R-2 and R-3 zones unless storm drain facilities are deemed necessary by the City Engineer. Development in all other zoning districts shall be served by on site swim drainage facilities connected to the City storm drainage system. If City storm drains are not available, drainage facilities shall be installed to the satisfaction of the City Engineer. 12. MASONRY WAIl.: A masonry wall shall be pwvided on the project's bounaAry with the Union Pacific Railroad, Said wall shall be at least six feet in height as measured from highest adjoining grade; greater height may be required in accordance with the project acoustical consultant's recommendations. Said wall shall be split-faced and be landscaped with vines on both sides. 13. PEDESTRIAN PATH EASEMENTS: Applicant shall record a public eascment in the area of the pedestrian path along the western property boundary and on the three main internal pathways connecting Imperial Avenue to the public pedestrian path along the rear property line. Property owner will be responsible for maintenance of all pathways. Pwperty owner or HOA shall be responsible for maintaining all landscaping and liability for the areas covered by the pedestrian easements. Easements shall be recorded prior to issuance of permits. 14. UNDERGROUND UTII.~TIES: The developer shall comply with the requirements of the Underground Utilities Ordinance No. 331 and other related Ordinances and regulations of the City of Cupertino, and shall g:/plam~ng/pdreport/res/O2.TM. Ol res. doc Resolution No. 6109 02-TM-01 September 24, 2001 Page 4 coordinate with affected utility providers for installation of under/round utility devices. The developer shall submit detailed plans showing utility underground provisions. Said plans shall be subject to prior approval of the affected Utility provider and the City Engineer. 15. IMPROVEMENT AG]~F.~MENT: The project developer shall enter into a development a~eement with the City of Cupertino pwviding for payment of fees, including but not limited to checking and inspection fees, sto£~fi drain fees, park dedication fees and fees for undergrounding of utilities. Said agreement shall be' executed prior to issuance of construction permits. Fees: a. Checking&InspeedonFees: $ 5%. of Off-Site Improvement Cost or $2,130.00 minimum b. Grading Pe~'afit: $ 5% of Site/mprovement ~Cost e. Development Maint. Deposit: $ 3,000.00 d. Storm Drainage Fee: $ 7,567 e. Power Cost: ** f. Map Checking Fees: $1,047.00 g. Park Fees: $388,800.00 ** Based on the latest effective PG3~E rate schedule approved by the PUC Bonds: Faithful Performance Bond: 100% of Off-site and On-site Improvements Labor & Material Bond: 100% of Off-site and On-site Improvement On-site Grading Bond: 100% of site improvements. -The fees described above are imposed based upon the current fee schedule adopted by the City Council. However, the fees imposed herein may be modified at the time of recordation of a finai map or issuance of a building peLmit in the event of said change or changes, the fees changed at that time will reflect the thon current fee schedule. 16. TRANSFORMERS: Electrical tran.~formers, telephone vaults and similar above ground equipment enclosures shall be screened with fencing and landscaping or located underground such that said equipment is not visible from public street areas. 17. DEDICATION OF WATERLINES: The developer shall dedicate to the City ail waterlines and appurtenances inst_~lled to City Stantt~rds and shall reach an agreement with San Jose Water for water service to the subject development. 18. NOTICE OF INTENT: The applicant must file a Notice of Intent (NOI), as required by the State Water Resource Control Board, for all construction activity disturbing 5 acres or more of soil The permit requires the development and implementation of a Storm Water Pollution Prevention Plan g:/plim~ng/pd~po~.t/~ea~O2-TM-OI ~s. dt~c Resolution No. 6109 02-TM-01 September 24, 2001 Page $ '-' (SWPPP) and the utilization of storm water Bl~dP's. Thc City shall review the SWPPP for adequacy. 19. BEST MANAGF. AV~.NT PRACTICES: Utilize Best Management Practices (BMP's), as required by the State Water Resources Control Board, for construction activity which disturbs soil. BMP plans shall be included in your grading and street improvement plans. Erosion and or sediment control plan shall bc provided. C1TY ENG~,ER'S CERTIFICATE OF ACCEPTANCE OF ENGBqF_.ERING/SURVEYING CONDITIONS (Section 66474.18 California Government Code) I hereby certify that the en~neering and surveying conditions specified in Section W of this Resolution conform to generally accepted engineering practices. Ralph Quails, Director of Public Works PASSED AND ADOPTED this 24th day of September, 2001, at a Regular Meeting of the Planning Commission of the City of Cupertino by the following roll call vote: AYES: COMMISSIONERS: Corr, Pamoe, Chen, Auerbach and Chairperson Kwok NOES: COMMISSIONERS: ABSTAIN: COMMISSIONERS: ABSENT: COMMISSIONERS: ATTEST:" APPROVED: Is/Steve Piasecki Is/Patrick Kwok Steve Piasecki Patrick Kwok, Chairperson Director of Community Development Cupertino Planning Commission g:/planning/l~dreport/res/O2.TM. OI ~ts. doc City of Cupertino 10300 Torte Avenue Cupertino, CA 95014 (408) 777-32.51 CU F,~((4O8) 777-3333 PEI TINO con~mun,~ Development Department Staff Use Only EA File No. Case File No. 02-TM-01 PROJECT DESCRIPTION: Attachments Project Title: SummerHill Homes ProJe~ Location: Imperial Avenue Project DeeoHption: Tentative map to subdivide a 4.15-acm oamel into 56 lots and common areas for a 56 unit townhome development. Environmental Setting: The subject parcel is an existina liaht industrial site currentlv beina used as warehousina space. The oarcel is the site of the former Woeffel's Cannery. PROJECT DESCRIPTION: Site Area (sc.) - 4.15 Building Coverage - 26% Exist. Building - 20,236s.f. Proposed Bldg. - 117.329s.f. Zone-ML G.P. Designation - Llqht Industrial/Residential Assesaor'~ PsreelNo. - 357-20-013 If residential, units/gross acm- 13,33 Total# Rental/Own Bdrme Total e.f. Price Plan #1 13 Ownership 3 1,471 $600,000 Plan #2' 17 Ownership 3 1,611 $625,000 Plan #3 13 Ownership 4 1,793 $675,000 Live/Work 13 Ownership 3 1,571 $700,000 Applicable Special Area Plans: (Check) [] Monta Vista Design Guidelines [] S. De Anza Conceptual [] N. De Anza Conceptual [] S. Sam-Sunny Conceptual [] Stevens Crk Blvd. Conceptual [] Stevens Creek Blvd. SW & Landscape If Non-Residential, Building Area - s.f. FAR- __ Max. Employess/Shlft - Parking Required Parking Provided Project Site is Within Cupertino Urban Service Area - YES [] NO [] Pa~e 1 A. CUPERTINO GENERAL PLAN SOURCES D. OUT~IDE AGENCIF..~ (Continued) 1. Land Use Element 26. Midpeninsula Regional Open Space Dletr~-t ._ ~ Public Safety Element 27. County Pafl(s and Recreation Department 3. Housing Element 28. Cupertino Sanitary District 4. Transportation Element 29. Fremont Union High School Disbict 5. Environmental Resources 30. Cupertino Union School District 6. Appendix A- Hillside Development 31. Pacific Gas and Electric 7. Land Use Map 32. Santa Clara County Fire Department 8. Noise Element Amendment 33. County Sheriff 9. City Ridgalina Policy 34. CALTRANS 10. Constraint Maps 35. County Transportation Agency 36. Santa Clara Valley Water District B. CUPERTINO SOURCE DOCUMENTS 11. Tree Presewation ordinance 778 E. OUTSIDE AGENCY DOCUMENTS 12. City Aerial Photography Maps 37. BAAQMD Survey of Contaminant . 13. 'Cupertino Chronicle' (Califomle Hlsto;y Exauesea Canter, 1976) 38. FEMA Flood Mapa/SCVWD Rood Maps 14. Geological Report (site specific) 39. USDA, 'Solle of Santa Clam County" 15. Parking Ordinance 1277 40. County Hazardous Waste Management 16. Zoning Map Plan 17. Zoning Code/Specific P!an Documents 41. County Heritage Resources Inventory 18. City Noise Ordinance 42. Santa Clara VallayWater District Fuel Leak Site C. CITY AGENCIES Site 43. CalEPA Hazardous Waste end 19. Community Development Dept. Est Substances Site 20. Public Wofl;s Dept. 21. Pails & Recreation Depa,~u,ent F. OTHER SOURCES 22. Cupertino Water Utility 44. Project Plan Sat/Application MataHala 45. Field R~onnaiseance D. OUTSIDE AGENCIES 46. E,xperlan~e w/project of similar 23. County Planning Department a¢ope/oharacteristlce ._ 24. Adjacent Cities' Planning Departments 47. ABAG Projection Series 25. County Dapai~,,ental of Environmental Health A. Complete all information requested on the Initial Study Cover page. LEAVE BLANK SPACES ONLY WHEN A SPECIFIC ITEM IS NOT APPLICABLE. B. Consult the Initial Study Soume Est; use the materials listed therein to complete, the checklist information in Categories ^ through O. C. You are encouraged to cite other relevant soumas; if such soumes are used, job in their title(s) in the 'Soume' column next to the question to which they relate. D. If you check any of the "YES' response to.any questions, you must attach a sheet explaining the potential impact and suggest mitigation if needed. E. When explaining any yes response, label your answer clearly (Example 'N - 3 Historical') Please try to respond concisely, and place as many explanatory responses as possible on each F. Upon completing the checklist, sign and date the Preparer's Affidavit. G. Please attach the following materials before submitting the Initial Study to the City. ,/Project Plan Set of Legislative Document ,/Location map with site clearly marked BE SURE YOUR INITIAL STUDY SUBMITTAL (when applicable) IS COMPLETE - INCOMPLETE MATERIALS MAY CAUSE PROCESSING DELAY Page 2 EVALUATION OF ENVIRONMENTAL IMPACTS: [and Supporting Information Sources] I. AESTHETICS~'; WoUld the project:." "" ' .. a) Have a substantial adverse effect on a r~ [] [] [] scenic vista? [5,9,24,41,44] b) Substantially damage scenic resources, [] [] [] [] inoluding, but not limited to,.trees, rock outcroppings, and historic buildings within a state scenic highway?. [5,9,11,24,34,41,44] c) Substantially degrade the existing visual [] [] [] [] character or quality of the site and its surroundings? [1,17,19,44] d) Create a new source of substantial light or [] [] [] [] glare, which would adversely affect day or nighttime views in the area? [1,16,44] II. AGRICULTURE RESOURCES: in .. ".'" '..' ... "' .. ....' :."' '.': '':''.,:-.~' ':"." :'.:.:.~' .""'.",- determining whether impacts to agricultu.ial ' '''''''~'': resources are significant environmental ' ' '"" ":":'"' ~:' '" ' · :" ' "':' · 'i.- .. :.i. effects, lead agencies may refer to the "':' :'--" '""' · . ' :' ''!' "-:' "" Califorma Agricultural Land Evaluation and Site Assessment Model (1997) prepared by the Califomia Dept. of Conservation as an optional model to use in assessing impacts on agriculture and farmland. Would the I project: a) Convert Prime Farmland, Unique [] [] [] [] Farmland, or Farmland of Statewide Importance (Farmland), as shown on the maps prepared pursuant to the Farmland Mapping and Monitoring Program of the California Resources Agency, to non- agricultural use? [5,7,39] b) Conflict with existing zoning for [] [] [] [] agricultural use, or a Williamson Act contract? [5,7,23] c) Involve other changes in the existing [] [] [] [] environment which, due to their location or Page 3 I~SUES: [and Supporting Information Sources] nature, could result in conversion of Farmland, to non-agricultural use? [5,7,39] III.'AIFi'Q'uALITY-Where availabje, the"' ..: '. . ' · - · .: : ' · ." ...... significance' criteria air qualityeStablished management by the or air" '.i...i ' :."',....... '. .... · ~'applicable =''~ ' "' '~' ': "' ' ' "' ' ''~::'''''. Ii pollution,control district may be relied upon ...'.. .... .... ... :."' to make'the following determinations. Would . · the project: '.".. :. "' :' ..,.'"" .' ". a) Conflict with or obstruct implementation of [] [] [] [] the applicable air quality plan? [5,37,42,44] b) Violate any air quality standard or [] [] [] [] contribute substantially to an existing or projected air quality violation? [5,37,42,44] c) Result in a cumulatively considerable net [] [] [] [] ._ increase of any criteria pollutant for which the project region is non-attainment under an applicable federal or state ambient air quality standard (including releasing emissions which exceed quantitative thresholds for ozone precursors)? [4,37,~.~.] d) Expose sensitive receptors to substantial [] [] [] [] pollutant concentrations? [4,37,44] e) Create objectionable odom affecting a [] r~ [] [] substantial number of people? [4,37,44] i IV. BIOLOGICAL RESOURCES - Would ' ' the project: ... · a) Have a substantial adverse effect, either [] [] [] [] directly or through habitat modifications, on any species identified as a candidate, sensitive, or special status species in local or regional plans, policies, or regulations, or by the California Department of Fish and Game or U,S, Fish and Wildlife Service? [5,10,27,44] b) Have a substantial adverse effect on any [] [] [] [] '-- riparian habitat or other sensitive natural P~e4 Supporting Information Sources] ~ ;~ E ~ ~_~= :; =" ~-E _~ [end community identified in local or regional plane, policies, regulations or by the California DepaCu,,ent of Fish and Game or US Fish and Wildlife Service? [5,10,27,44] c) Have a substantial adverse effect on [] [] [] [] federally protected wetlands as 'defined by Section ,~04 of the Clean Water Act (including, but not limited to, marsh, vernal pool, coastal, etc.) through direct removal, filling, hydrological interruption, or other means? [20,36,44] d) Interfere substantially with the movement [] [] [] [] of any native resident or migratory fish or wildlife species or with established native resident or migratory wildlife corridors, or impede the use of native wildlife nursery sites? [5,10,12,21,26] e) Conflict with any local policies or [] I:] [] [] ordinances protecting biological resources, such as a tree preservation policy or ordinance? [11,12,41] f) Conflict with the provisions of an adopted Habitat Conservation Plan, Natural [] [] [] [] Community Conservation Plan, or other approved local, regional, or state habitat conservation plan? [5,10,26,27] V. CULTURAL RESOURCES - Would the ! proje=t: "' a) Cause a substantial adverse change in [] [] [] [] the significance of a historical resource as defined in §15064.5? [5,13,41] b) Cause a substantial adverse change in [] [] 1:3 [] the significance of an archaeological resource pursuant to §15064.5? [5,13,41 ] c) Directly or indirectly destroy a unique [] [] [] [] paleontological resource or site or unique geologic feature? [5,13,41] d) Disturb any human remains, including Page 5 I~GUES: i c ',., [and Supporting Information Soureee] !~_E i~'~ ~E ~o those interred outside of formal cemeteries? [] [] [] [] I1 ,si Cultural Resources Discuasion: Although the site was formerly a cannery of historical significance, all the buildings on the site have been altered and are no tonger of any historical significance. Staff visited the site with Ethel Worn, Executive Director of the Cupertino Historical Society on Tuesday, May 8, 2001. After thoroughly inspecting all buildings located on the site, it was determined by the Cupertino Historical Society that nothing on the site was worth salvaging. As mitigation, the Cupertino Historical Society is requesting the developer contract with a consultant for the preparation of a Historical Resume of the property. · .v,. GEOLOGY ~.D So,.S - Wo-,d.,,,'. "~ ....'.." ".'? ~.' "'"' ..: '"'. '~'ii' ...'~.i?. ...' :'iii~'.'.'..='~i ." project: .: ..... a) Expose people or structures to potential substantial adverse effects, including the risk of loss, injury, or death involving: i) Rupture of a known earthquake fault, as [] [] [] [] ._ delineated on the most recent Alquist-Priolo Earthquake Fault Zoning Map issued by the State Geologist for the area or based on other substantial evidence of a known fault?. Refer to Division of Mines and Geology Special Publication 42. [2,14,44] ii) Strong seismic ground shaking? [] [] [] [] [2,$,10,44] iii) Seismic-related ground failure, including [] [] [] [] liquefaction? [2,5,10,39,44] iv) Landslides? [2,5,10,39,44] [] [] [] [] b) Result in substantial soil erosion or the [] [] [] [] loss of topsoil? [2,5,10,44] c) Be located on a geologic unit or soil that is [] [] [] [] unstable, or that would become unstable as a result of the project, and potentially result in on- or off-site landslide, lateral spreading, subsidence, liquefaction or collapse? [2,5,10,39] d) Be located on expansive soil, as defined [] [] [] [] - in Table 18-1-B of the Uniform Building Code (1997), creating substantial risks to life or Page 6 ISSUES: =- ,., .~ ----. =.~o [end Supporting Information Sources] ~_E -.~ ~:; im =o _~_E~ ._~ property? [2,5,10] e) Have soils incapable of adequately [] [] [] [] supporting the use of septic tanks or alternative waste water disposal systems where sewers are not available for the · disposal of waste water? [6,9,36,39] VII. HAZARDS AND HAZARDOUS' ~ MATERIALS - Would the project: a) Create a significant hazard to the public or [] [] [] [] the environment through the routine transport, use, or disposal of hazardous materials? [32,40,42,43,44] b) Create a significant hazard to the public or [] [] [] [] the environment through reasonably foreseeable upset and accident conditions involving the release of hazardous materials into the environment? [32,40,42,43,44] c) Emit hazardous emissions or handle [] ' [] [] [] hazardous or acutely hazardous materials, substances, or waste within one-quarter mile of an existing or proposed school? [2,29,30,40,44] d) Be located on a site which is included on a [] [] [] [] list of haz.a, rdous materials sites compiled pursuant to Govemment Code Section 65962.5 and, as a result, would it create a significant hazard to the public or the environment? [2,42,40,43] e) For a project located within an airport land [] [] [] [] use plan or, where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project result in a safety hazard for people residing or working in the project area? [ ] f) For a project within the vicinity of a pdvate [] [] [] [] airstrip, would the project result in a safety hazard for people residing or working in the project area? [ ] Pag~ 7 ISSUES: [and Supporting Informstion Sources] g) Impair implementation of or physically [] [] [] [] interfere with an adopted emergency response plan or emergency evacuation plan? [2,32,33,44] h) Expose people or structures to ~ [] [] [] [] significant risk of loss, injury or death involvin~ wildland fires, including where wildland~ are adjacent to urbanized areas, or where residences are intermixed with wildlands?[1,2,44] V.l.'~6""°LOav~Ow~,+~','ciu~u.~ ""'~' "' '" ' '*~''~'~''~''~'~'''' .... '" ....... '~" *"'~'~ '- WO'u.d the proi"t.' ' .. '..".~'. ' ' .' ...-.;"'.. ':i .'"'i.i~:':.. ::'?.'~::i.:' :.'.." '" '"'-..."i i".'~= ...'? i'/.'-~" a) ¥iolate any w~ter quali~ etandards or [] [] [] [] waste d~harfle requirements?. b) Substantially deplete ground~ratsr [] [] [] [] ~ suppliss or interfere eub~anfially with ground~tor recharge such that them would be e net deficit in aqui[~r volume or a lowering of tbs local groundwatsr tabla level {e.g., the production rete o~ pre-existing nearby wells would drop to a level which would not support existing land uses or planned uees for which permit~ have granted)? e) Cmata or mntr~buto runoff ~ater wilioh [] [] [] would exce~l the capaoi~ of existing or planned stomwater drainage ~tem~ or pro¥ide substantial additional ~ourcas of polluted runoff? [~0,85,4~] 00therwiss eubstanfially degrade water [] [] [] [] quality? g) Place housin§ within a 100-year flood [] [] ~1 [] h~rd ama ,as mapped on e federal Flood I-I~mard Boundary or Flood Insurance [late Map or other flood h~-.~rd delineation map? [2,38] ._. h) Place within a lO0-year flood hazard area [] [] [] [] structures which would impede or redirect Page 8 [end Supporting Information Sources] ~ ~ E '-= ~ flood flows? [2,38] i) Expose people or structures to a significant [] [] [] [] risk of loss, injury or death involving flooding, including flooding se a result of the. failure of a levee or dam? [2,38,38] j) Inundation by seiche, tsunami, or [] [] [] [] mudflow? [2,36,38] IX. LAND USE'AND PLANNING ~ Would ' " "': '"':* ' "" ' '~"~ '''''~':'''~: '''':' ' ...... ' · the' project: · · . ...'.. "'.~. ....... .-. -:' " i · ' '. a) Physically divide an established [] [] [] [] community? [7,12,22,41] b) Conflict with any applicable land use plan, [] [] [] [] policy, or regulation of an agency with jurisdiction over the project (including, but not limited to the general plan, specific plan, local coastal program, or zoning ordinance) adopted for the purpose of avoiding or mitigating an environmental effect? · [1,7,8,16,17,18,44] c) Conflict with any applicable habitat [] [] [] [] conservatiOn plan or natural community conservation plan? [1,5,6,9,26] Land Use and Planning Discussion: The property is currently zoned ML (light industrial) and will need to be re-zoned P(RES) to accommodate the proposed development. X. MINERAL RESOURCES - Would the project: a) Result in the loss of availability of a known [] [] [] [] mineral resource that would be of value to the region and the residents of the state? [5,10] b) Result in the loss of availability of a [] .E3 [] [] locally-important mineral resource recovery site delineated on a local general plan, specific plan or other land use plan? [5,10] Page 9 XI. NOISE - Would the proJect result in: .. ' ".i' '" ..... ' a) Exposure of persons to, or generation of, D [] [] [] noise levels in excess of standards established in the local general plan or noise ordinance, or applicable standards of other agencies? [8,18,44] b) Exposure of persons to or generation of [] [] [] [] excessive groundbome vibration or groundborne noise levels? [8,18,44]. c) A substantial permanent increase in [] [] [] [] ambient noise levels in the project vicinity above levels existing without the project? [e,18] d) A substantial temporary or periodic [] [] [] [] increase in ambient noise levels in the project vicinity above levels existing without '-- the project? [8,18,44] e) For a project located within an airport land [] [] [] [] use plan or, where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project expose people residing or working in the project area to excessive noise levels? [8,18,44] f) For a I~roject within the vicinity of a private [] [] [] [] airstrip, would the project expose people residing or working in the project area to excessive noise levels? [8,18] ~ Xll. POPULATION AND HOUSING - Would [ the project: a) Induce substantial population growth In an [] [3 [] [] area, either directly (for example, by proposing new homes and businesses) or indirectly (for example, through extension of roads or other infrastructure)? [3,16,47,44] b) Displace substantial numbers of existing [] [] [] [] - housing, neceesitating the construction of ' Page 10 ISSUES: 'E .=_ ~. [andSupportinglnformationSouross] {_~E~, i'~ =~.~m! :~_~ replacement housing elsewhere? [3,16,44] c) Displace substantial numbers of people, [] [] [] [] necessitating the construction of replacement housing elsewhere? [3,16,~4] Population and Houeing Discussion: The proposed development will increase the housing supply for the city by 56 units, which is not Considered substantial. Xlll. PUBLIC SERVICES ... '"' ":" · "'" ' ' : ' "' ". ' a) Would the project result in substantial adverse physical impacts associated with the provision of new or physically altered governmental facilities, need for new or physically altered governmental facilities, the construction of which could cause significant environmental impacts, in order to maintain acceptable service ratios, response times or other performance objectives for any of the public services: Fire protection? [19,32,44] [] [] [] [] Police protection? [33,44] [] [] [] [] Schools? [29,30,44] [] [] [] [] Parks? [5,17,19,21,26,27,44] [] [] [] [] Other public facilities? [19,20,44] r-I [] [] [] XlV. RECREATION - a) Would the project increase the use of [] [] [] [] existing neighborhood and regional parks or other recreational facilities such that substantial physical deterioration of the facility would occur or be accelerated? [5,17,19,21,26,27,44] b) Does the project include recreational [] [] [] [] facilities or require the construction or expansion of recreational facilities which might have an adverse physical effect on the environment? [5,44] Pa~e 11 ssu;s: = ,, _= .0 [and Supporting Infoi,,,ation Sources] ~..'~ _~_E ~ . ~ j -~ = . XV. TRANSPORTATION/TRAFFIC- '" ': '... '...': .:..':: · Would'the project: ,, ' ' ' ' a) Cause an increase in traffic which is [] [] [] [] substantial in relation to the existing traffic Icad and capacity of the street system (i.e., result in a substantial increase in either the number ef vehicle trips, the volume to capacity ratio on roads, or congestion at intersections)? [4,20,35,44]. b) Exceed, either individually or cumulatively, [] [] [] [] a level of service standard established by the county congestion management agency for designated roads or highways? [4,20,44] c) Result in a change in air traffic patterns, [] [] [] [] including either an increase in traffic levels or a change in location that results In substantial safety risks? [4,?] d) Substantially increase hazards due to a[] [] [] [] design feature (e.g., sharp curves or dangerous intersections) or incompatible uses (e.g., farm equipment)? [20;35,44] e) Result in inadequate emergency access? [] [] [] Ei [2,19,3~,3,3,44] f) Result jn inadequate parking capacity?.[] [] [] [] [17,44] g) Conflict with adopted policies, plans, or [] [] [] [] programs supporting alternative transportation (e.g., bus turnouts, bicycle racks)? [4,34] Transportation/Traffic Discussion: Although the initial Traffic Impact Analysis report shows the development will'not significantly impact the neighborhood, staff has requested additional information regarding the need for the HoneywelVMeasurex properties retain access to Imperial Avenue. If at full build out potential, the Honeywell/Msesurex properties do not impose significant increases of traffic onto Bubb and McClellan, then the clause requiring the option to access Imperial Avenue can be removed. I I I I Pag8 12 ISSUES: = = ¢z .=_ =. ~o [and Supporting Information Sources] s = R ~_E UTILITIES AND ,SERVICE SYSTEMS " XVI - ""' .... Would the 'proje~.t ' · ; ' i"" ':. '":~' ' ' ~ :". ,.': ~' '":~" / ' a} Exceed wastewatar treatment [] [] [] [] requirements of the applicable Regional · Water Quality Control Board? [5.22.28.36,44] b) Require or result in the construction of [] [] [] [] new water or wastawater treatment facilities ' or expansion of existing facilities, the construction of which could, cause significant environmental effects? [36,22,28.36] c) Require er result in the construction of [] [] [] [] new storm water drainage facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? [5.22,28,36,44]. e) Result in a determination by the wastewater treatment provider which serves or may serve the project that it has adequate capacity to serve the project's projected demand in addition to the provider's existing commitments? [5,22,28,36,44] f) Be served by a landfill with sufficient permitted capacity to accommodate the project's solid waste disposal needs? [?] g) Comply with federal, state, and local statutes and regulations related to solid waste? [?] Page 13 ! '~" ...: I. MANDATORY.FINDINGS'OFSIGNIFICANCE i '...' ' · . '~ .~. -' :. (l'o.be COmpleted by'City Staff) .. · '~ .' · · ' · ~":. ':..~.~'~-...' ISSUES: ; =' ~. ;= .~ := =. ~o [and Supporting Informetion Sources; =;; =~_E m ~= -~ -~ i~ a) Does the project have the potent]al to [] [] [] [] degrade the quality of the environment, substant]ally reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self-sustaining - levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory? [] b) Does the project have impacts that are [] [] [] [] individually limited, but cumulatively _ considerable? ("Cumulatively considerable' means that the Incremental effects of a project are considerable when viewed in connection with the effects of past project, s, the effects of other current projects. and the effects of probable future projects)? c) Does the project have environmental · [] [] [] [] effects which will cause substantial adverse effects on human beings, either directly or indirectly? 13 PREPARER'S AFFIDAVIT I hereby certify that the information provided in this Initial Study is true and correct to the best of my knowledge and belief; I certify that I have used proper diligence in responding accurately to all questions herein, and have consulted appropriate source references when necessary to ensure full and complete disclosure of relevant environmental data. I hereby acknowledge than any substantial errors dated within this Initial Study may cause delay or discontinuance of related project review procedures, and hereby agree to hold harmless the City of Cupertino, its staff and authorized agents, from the consequences of such delay or discontinuance. Preparer's Signature Print Preperer's Name Vera Gil. Senior Planner ENVIRONMENTAL EVALUATION (To be Completed by City Staff) ENVIRONMENTAL FACTORS POTENTIALLY AFFECTED: The environmental factors checked below would be potentially affected by this project, involving at least one impact that is a 'Potentially Significant Impact' as indicated by the checklist on the following pages. [] Aesthetics [] Agriculture Resources [] Air Quality [] Biological Resources [] Cultural Resour~as [] Geology/Soils [] Hazards & Hazardous []' Hydrology / Water [] Land Use / Planning Materials Quality [] Mil~eral Resources [] Noise' El Population / Housing [] Public Services [] Recreation [] Transportation/Traffic [] Utilities / Service [] Mandatory Findings of Systems Significance DETERMINATION: On the basis of this initial evaluation the Environmental Review Committee (ERC) finds that: [] The proposed project COULD NOT have a significant effect on the environment, and a NEGATIVE DECLARATION will be prepared. [] Although the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because revisions in the project have been made by or agreed to by the project proponent. A MITIGATED NEGATIVE DECLARATION will be prepared. [] The proposed project MAY have a iignificant effect on the environment, and an ENVIRONMENTAL IMPACT REPORT is required. [] The Pmpoasd project' MAY have a 'potentially significant impact' or 'potentially significant unless mitigated' impact on the environment, but at least one effect 1) has been adequately analyzed in an earlier document pursuant to applicable legal standards, and 2) has been addressed by mitigation measures based on the earlier analysis as described on attached sheets. An ENVIRONMENTAL IMPACT REPORT is required, but it must analyze only the effects that remain to be addressed. [] Although the proposed project could have a significant effect on the environment, because all potentially signif'~ant effects (a) have been analyzed adequately in an earlier EIR or NEGATIVE DECLARATION pursuant to applicable standards, and (b) have been avoided or mitigated pursuant to that earlier EIR or NEGATIVE DECLARATION, including revisions or mitigation measures that are imposed upon the proposed project, nothing further is required. ~i~e~~uator) Date AuGust 8. 2001 Ri'chard Low-enthal, ERC Chairperson Date Page 15 C1TY OF CUPERTINO I~GATIV~ DECLARATION As provided by thc Bnvironmcntal Assessment Procedure adopted by the City Council of thc City of Cupertino on May 27, 1973, and amended on March 4, 1974, January 17 1977, May 1, 1978, and July ?, 1980, the follow'rog described project was granted a Negative Declaration by the City Council of the City of Cupertino on October l, 2001. PRO~ECT DESCRIPTION AND LOCATION 06-EA-01 Application No.: 02-TM-01 Applicant: Summerhill Homes Location: 10120 Imperial Avenue DISCRETIONARY ACTION REOUEST Tentative map to subdivide a 4.15 acre parcel into 56 lots and common areas for a 56 unit townhome development (public hearings for a use permit and zoning were previously scheduled. FINDINGS OF DECISIONMAKING BODY The City,Council granted a Negative Declaration since the project is consistent with the General lan / are no significant environmental impacts. '-~ Steve Piasecki Director of Community Development CERTIFICATE OF THE CITY CLERK This is to certify that the above Negative Declaration was fried in the Office of the City Clerk of the City of Cupertino on City Clerk OIV~lt~ ~: J:~EN~OO~OO~12~ll~r~pr*lte.d~ PLOT ~ATE: 09-18-01 PLOTTED BY: I~11 City of Cupertino ._. 10300 Torre Avenue · Cupertino, CA g5014 CITY OF (408) 777-3251 FAX (40a) 777-3333 CUPE INO Community Development Department Housing Services Summary Agenda Item No. ~1 Agenda Date: October 1. 2001 Subject: First Amendment to Ground Lease between the County of Santa Clara Central Fire Protection District and the City of Cupertino. Recommendation: Staff recommends the city council approve the attached First Amendment to Ground Lease per the attached resolution and authorize the City Manager to execute the First Amendment on behalf of the city of Cupertino. Background: In February 1999, the city of Cupertino entered into a ground lease with the County of Santa Clara Central Fire Protection District for surplus property located behind the new fire station on Stevens Creek Boulevard, near the intersection of Vista Drive. The lease for the 1.17-acre _ parcel required the city of Cupertino to deed the property on which the Seven Springs Fire Station is located and pay a sum of $1,150,000. The total value of the lease is $1,800,000. The lease will be assigned to Cupertino Community Services (CCS) within the next month. CCS, in conjunction with BRIDGE Housing Corporation, will develop 24 units of affordable housing and a new administrative office on the property. Discussion: This first amendment to the ground lease will make the following changes: 1. Revises the outside commencement date for the property lease from February 28, 2001 to December 31, 2001. 2. Revise~ the list of encumbrances to include those listed in Exhibit B. 3. Deletes an outdated, and unnecessary, title report (Exhibit C) and its exclusions. 4. Adds language allowing the foreclosure transferee to transfer the property to a similar affordable housing ·developer or property owner. These amendments are considered minor. Therefore staff is recommending the City Council approve the First Amendment to Ground Lease. Prepared ~: V~,}Senior Planner Steve ~'iasecKi David W. Knapp · -' Director of Community Development City Manager Enclosures: Resolution No: 01- First Amendment to Ground Lease Printed on Recycled P~l~er I ~ "~ RESOLUTION NO. 01-214 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO APPROVING THE FIRST AMENDMENT TO GROUND LEASE AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE AMF. NDMENT WHEREAS, the city entered into a ground lease with the County of Santa Clara Central Fire Protection District in February 1999; and WHEREAS, there has been presented to the City Council a proposed first amendment to the aforementioned ground lease; and WHEREAS, the terms, conditions and provisions of the First Amendment to Ground Lease have been reviewed and approved by the City Attomey; NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino hereby approves the aforementioned lease amendment and authorizes the City Manager to execute the 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 1st day of October, 2001 by the following vote: Vote Members 'of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: City Clerk Mayor, City of Cupertino O:\City Clerk~lesolutions~2001 Resolufions~01-214.do~ _ FIRST AMENDMENT TO GROUND LEASE This First Amendment to Ground Le~se (this "First ~.mendment") is entered into as of this day of August, 2001 by and between the Santa Clara County CenU~l Fire Protection District, a special district of the State of C~i;fornia (the "District") and the City of Cupertino, a municipal corporation (the "City") with reference to the following facts: RECITALS A. Thc Dislrict and the City ~ntcred into that certain Ground Lease dated as of February 29, 2000 (the "Ground Lease") purs~-,~t to which the District leased to the City a cert~i~ parcel of real property located with;r~ the City of Cupertino. B. The City intends to assign its interest under the Ground Lease to Cupertino Community Services (the ".Assignee".). -. C. Assignee desires to commence construction of an affordable housing development by November 1, 2001. D. The District and the City now wish to amend the Ground Le~se pursuant to this First NOW, THEREFORE, in consideration of the foregoing, of the mutual promises - of the parties hereto and for other good and val--ble consideration the receipt and su~cicncy of which are hereby acknowledged, the City and the District agree as follows: 1. Description of Land. The description of the Land attached as Exhibit A to the Ground Lease shall be deleted and shall be replaced by Exhibit A attached to this First Amendment. 2. Commencement Date. The first sentence of Section 3.3 of the Ground Lease shall be deleted and shall be replaced with the following: "The Commencement Date shall be thc earlier of (i) date of the closing of the City loan encumbering Assignee's leasehold interest in the Laud and (ii) December 31, 2001." 3'. Possession. The first sentence in Section 3.4 of the Ground Lease shall be deleted and replaced with the following: "Possession of the Land shall be delivered to Lessee frec and clear of all liens and encumbrances except for taxes not yet due and payable and any other items which are caused by the actions or agreed to in writing by Lcsscc and free, clear and vacant of any occupants, leases, licenses, concessions or other agreements granting to any third party any right to occupy unless otherwise agreed by Lessee." Exhibit C of the Ground Lease is hereby deleted. 4. Liens and Encumbrances. Subsections (i) through (vi) of Section 21.2 of thc Ground shall be deleted and shall be replaced with thc encumbrances set forth in Exhibit B to · - this Fi_vst Amendment. Lessor and Lessee agree that thc amounts of each encumbrance set forth in Bxhlbit B may be increased by up to ten percent (10%) with the reasonable approval of Lessors executive director. 1"H21H47764.5 1 [( -- 3 5. Foreclosure Transferee. Section 21.2(c)(ix) sh,l! be -mended to add a second sentence to the Section as follows: "Ifa Foreclosure TranSferee becomes the legal owner of the leasehold estate, prior to entering into a new lease for the Land such Foreclosure Transferee may transfer its leasehold interest to an.entity experienced in owning and operating housing projects similar to the Development with the reasonable approval of Lessor." 6. Future Encumbrances. Section 27.5 of the Ground Lease shall be amended to replace the. references to Lessor with Lessee and replace the reforences to Lcssee with Lessor. 7. Cal~italized T~,,s. Any capil~li~.ed te~us used in this First Amendment and not defined herein shall have the meaning ascribed to them in the Ground Lease. ' 8. No Other Chan~es. Notwithst~ding the'changes and deletions cont,ined herein, all other provisions of the Ground Lease remain the same. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. CITY CITY OF C~ERTINO By:, Its: Approved as to Form City Attorney DISTRICT Santa Clara County Central Fire Protection District By:. Approved as to Foi,,~ & Legality County Counsel Bxhibi! A (Description of Land) Exhibit B (Liens and Encumbrances) 1. Deed of trust sccuring a construction and permanent $2,000,000 loan from a commercial bank 2. Deed of trust securing a loan from the City of $2,800,000 Cupertino 3. Deed of trust secm-ing Santa Clara County HOME $747,800 4. Deed oflrust secur~n.' g a loan from the Santa Clara -. $341,000 County Housing Trust 5. Deed of Trust securing Santa Clara County CDBG $300,000 funds 6. Deed of Trust securing a grant from the City of Los $176,604 Altos 7. Deed of Trust securing a loan from the City of $100,000' Sunnyvale 8. Deed of Trust securing at loan from the City of Santa $40,000 Clara 9. Deed of Trust securing a grant from the City of $39,707 Saratoga The loan described in Item 1 is to be secured by the District's interest in the Land. All other loans and grants will be secured by the leasehold estate created by the Lease and the Improvements. 144~121~147764.5 4 ti--(.~ Cit~ of Cupertino _ 10300 TorTe Avenue Cupertino, CA 95014 CITY OF (408) 777-3251 FAX (408) 777~3333 CUPE INO commumty ueve,opment uepartmen, Housing Services Summary Agenda Item No. I~,~ J Agenda Date: October 1. 2001 Subject: Approval of Assignment and Assumption Agreement, Loan Agreement, Regulatory Agreement, Deed of Trust, Promissory Note and Subordination Agreement for Cupertino Community Services' Heart of Cupertino development. Recommendation: Staff recommends the city council approve the Assignment and Assumption Agreement, Loan Agreement, Regulatory Agreement, Deed of Trust, Promissory Note and Subordination Agreement and authorize the City Manager to execute the documents on behalf Of the city of Cupertino. Background: In February 1999, the city of Cupertino entered into a ground lease with the County of Santa Clare Central Fire Protection District for surplus property located behind the new _ fire station on Stevens Creek Boulevard, near the intersection of Vista Drive. The lease for the 1.17-acre parcel required the city of Cupertino to deed the property on which the Seven Springs Fire Station is located and pay a sum of $1,150,000. Cupertino Community Services (CCS), in conjunction with BRIDGE Housing Corporation, will develop 24 units of affordable housing and a new administrative office on the surplus property. Discussion: Before CCS can take control of the property to begin construction, certain documents need to be executed by the City, the County of Santa Clara Central Fire District and CCS. Enclosed for the City Council's review and approval are the following documents: 1.Assignment and Assumption Agreement that assigns the ground lease from the City of Cupertino to CCS. 2. Loan Agreement between the city of Cupertino and CCS setting the loan terms for the $2,705,000 the city is loaning CCS. The loan will be for a term of 55 years at an interest rate of zero percent. All repayment will come from residual receipts. 3. Regulatory Agreement between the city of Cupertino and CCS regulating the use and operation of the development. 4. Construction and Permanent Deed of Trust, Assignment of Rents and Security .-. Agreement securing the repayment of the loan. 5. Promissory Note indicating a promise from CCS to repay the city of Cupertino the loan amount. 6. Subordination Agreement subordinating the city loan Deed of Trust to the Bond Deed of Trust. The documents have been reviewed and approved by the City Attorney as to form and content, After tonight's approval the documents will be forwarded into escrow. The city's payment of the loan will be contingent upon the receipt of the executed Assignment and Assumption Agreement from the County of Santa Clara Central Fire Protection District. Prepared/~y:.. Versa Gil, ienior Planner Submitt .el:l by: . ? ApprovedL~ ~'~'f°r Submittal: ,--."'L_ Steve/Pi~secki David W. Knapp Director of Community Development City Manager Enclosures: Resolution No: 01-~ I,.~ Assignment and Assumption Agreement Loan Agreement between the city of Cupertino and CCS Regulatory Agreement between the city of Cupertino and CCS Construction and Permanent Deed of Trust, Assignment of Rents and Security Agreement Promissory Note Subordination Agreement RESOLUTION NO. 01-215 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO APPROVING THE ASSIGNMENT AND ASSUMPTION AGREEMF~NT, LOAN AGREEMENT BETWEEN THE CITY OF CUPERTINO AND CUPERTINO COMMUNITY SERVICES, REGULATORY AGREEM~NT,'DEED OF TRUST AND PROMISORY NOT AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE AMENDMENT WHEREAS, the city entered into a ground lease with the County of Santa Clara Central Fire Protection District in February 1999; and WHEREAS, there has been presented to the City Council an Assignment and Assumption Agreement, a Loan Agreement between the City of Cupertino and Cupertino Community Services, a Regulatory Agreement, a Deed of Trust and a Promissory Note; and WHEREAS, the t~u~s, conditions and provisions of the aforementioned documents have been reviewed and approved by the City Attorney; NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino hereby approves the aforementioned documents and authorizes the City Manager to execute the documents on behalf of the City of Cupertino. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 1st day of October, 2001 by the following vote: Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: City Clerk Mayor, City of Cupertino G :kCity Clcrk~R~sol utionsk2001 Re~olu~ions~01-215 .doc ASSIGNMENT AND ASSUMPTION AGREEMENT This Assignment and Assumption Agreement (the "Agreement") is entered into as of ,2001, by and among Cupertino Community Services, a California nonprofit public benefit corporation ("CCS") the City of Cupertino, a municipal corporation (the "City") and the Santa Clara County Special Fire District, a special district of the State of California (the "District"), with reference to the following facts: RECITALS A. The City and the District entered into that certeiu Ground Lease dated February 29, 2000 pursuant to which the County leased to th~ City the property located at 20235 Stevens Creek Boulevard at Stevens Creek Boulevard and Vista Drive in Cupertino California (the "Ground Lease"). A copy of the Ground Lease is attached to this Agreement as Exhibit A. B. The Stevens Creek Boulevard property leased by thc City pursuant to the Ground Lease (the "Land") is a part of a larger parcel owned by the District. C. The City now desires to assign to CCS and CCS desires to assume from the City the City's rights and obligations under the Ground Lease. D. The City and the District have agreed that the present value of the leasehold in the Land is One Million Eight Hundred Thousand Dollars ($1,800,000). E. Prior to this Agreement, the City has made a one time lease payment to the District in the amount of One Million One Hundred Fifty Thousand Dollars ($1,150,000) and has conveyed the Seven Springs property to the District, as further specified in the Ground Lease. F. The City and the District agreed that the City's one time lease payment and the conveyance of the Seven Springs property to the District equals the present value of the leasehold and constitutes full payment of the Ground Lease rent for the entire term of the Ground Lease. G. CCS will reimburse the City for the one time lease payment made to the District. H. The Ground Lease provided that the District would file a parcel map or such other document which may be required to subdivide the Land from the District's larger parcel and adjust the bounaAry lines of the Land. NOW, THEREFORE, in consideration of the foregoing, of the mu~s! promises of the parties hereto and for other good and valuable consideration the receipt and sufficiency of Which are hereby acknowledged, CCS, the City and the District agree as follows: Section 1. Assignment. City assigns and transfers to CCS all of the City's right, title and interest in and to the Ground Lease, and CCS agrees to and does accept the assignment. CCS expressly assumes and agrees to keep, perform and fulfill all the terms, covenants, conditions and obligations, required to be kept, performed and fulfilled by the City as Lessee under the lease, including the making of all payments due to or payable on behalf of Lessor under the lease when due and payable. Section 2. Reimbursement of the City. In consideration for the City's payment of Cvround Lease rent and as further consideration of the assi~,nntent of the Ground Lease to CCS by the City, CCS shall reimburse the City in the amount of One Million One Hundred Fifty Thousand Dollars ($1,150,000) no later than December 31, 2001. Section 3. Commencement Date. Notwithstanaing provisions of Section 3.3 of the C-round Lease, the Commencement Date shall be the date that the Confirmation of Lease Commencement, attached as Exhibit B to the Ground Lease, is executed by CCS and delivered to the Di--i~ict. Section 4. Property Description. The Ground Lease description of the Land is deleted and replaced with the' description of the Land described in Exhibit B to this Agreement. Section 5. Representations of CiW. The City represents and warrants as follows: (a.) The City has made a one time lease payment to the District in the amount of One Million One Hundred Fifty Thousand Dollars ($1,150,000). (b.) The City has conveyed the Seven Springs property to the District in -- compliance with the Ground Lease. (c.) The City has not previously assigned, pledged, hypothecated or otherwise transferred any of its rights under the C-round Lease. (d.) The Ground Lease is in full force and effect and to the City's knowledge there exists no default nor any act, failure, omission or condition that would constitute a default under the Ground Lease Section 6. Representations of the District. The District represents and warrants as follows: (a.) The District has received a One time lease payment from the City in the amount of One Million One Hundred Fifty Thousand Dollars ($1,150,000) accepted the Seven Springs property which was conveyed to the District by the City in compliance with the Gwund Lease. (b.) The Rent, as defined in the Ground Lease, has been paid in full. (c.) The Ground Lease is in full force and effect and to the Di~lct's Irnowledge there exists no default nor any act, failure, omission or condition that would constitute a default under the Ground Lease (d.) The District has obtained a lot line adjustment for the Property. 144~121H46271.3 2 Section 7. Release of City. As of the Effective Date, CCS and the District release the City i~om the peri'oii~ance of obligations under the Ground Lease required to be performed after the Effective Date. Section 8. Cavitalized Terms. Any capitalized terms used in this Agre¢i~ent and not defined herein shall have the meaning ascribed to thei~ in the Ground Lease. Section 9. Effective Date. The assignment set forth above shall be effective as of the date of this Agreement. 144~121\146271.3 ~ IN WITNESS WHEREOF, the parties have executed this Agreement as of thc date first written above. CCS CUPERTINO COMMUNrlT SERVICES, a California nonprofit public benefit corporation By: Its: CITY CITY OF CUPERTINO By: Its: Approved as to Form City Attorney DISTRICT Santa Clara County Central Fire Protection District By: Its: Approved as to Form & Legality County Counsel /~'7 LOAN AGREEMENT BY AND BETWEEN CITY OF CUPERTINO CUPERTINO COMMUNITY SERVICES, INC. 144\121~11788~.7 LOAN AGREEMENT' This Loan Agreement (this "Agreement") is made as of this ~ day of ,2001, by and between the City of Cupertino, a municipal corporation (the "City"), and Cupertino Community Services, Inc., a California nonprofit public benefit corporation (the "Borrower") with reference to the following facts: RECITALS A. The City wishes to promote the development of more affordable rental housing in the Cupertino community and to provide a greater choice of housing opportunities for persons and families of low income. B. The Borrower proposes to ground lease from the County of Santa Clara County Special Fire District a parcel of real property located in the City of Cupertino in Santa Clara as more particularly described in the Exhibit A attached to this Agreement (the "Property"). C. The Borrower proposes to develop a mixed-use project consisting of - approximately twenty-four (24) rental units and approximately.4,500 square feet of office space on the Property (the "Development"). D. The Borrower wishes to borrow from the City and the City wishes to extend to the Borrower a loan in the amount of Two Million Seven Hundred Five Thousand Dollars ($2,705,000) to support the Borrower's activities in leasing and developing the Property. NOW THEREFORE, IN CONSIDERATION of the mutual agreements, obligations, and representations, and in further consideration for the making of the Loan, the Borrower and the City hereby agree as follows: ARTICLE 1 DEFINITIONS The following t~,,,~ have the meanings and content set forth in this section wherever used in this Agreement, attached Exhibits, or documents incorporated into this Agreement by reference. Section 1.1 "AGREEMENT" means this loan agreement entered into between tl{e City and the Borrower. Section 1.2 "ASSISTED UNIT" menn.~ eleven (11) housing units on the Property '-- reserved for occupancy by a Very Low Income Household or Low Income Household. 144~121\117883.7 I -9 Section 1.3 "BORROWER" means Cupertino Community Services, Inc., a California nonprofit public benefit corporation, and its authorized representatives, assigns, transferees, or successors-in-interest thereto. Section 1.4 "BUDGET" means that budget for the use of Loan proceeds attached as Exhibit B to this Agre¢ii~ent. Section 1.5 "CITY" means the City of Cupertino, a municipal corporation and its authorized representatives, officers, officials, directors, employees, and agents. Section 1.6 "DEED. OF TRUST" mcans thc deed oflrust to be recorded against Borrower's lcasehold interest in the Property upon Borrower's subleasing of the Property securing the Loan and naming the City as beneficiary a fo,. of which is attached as Exhibit C. Section 1.7 "DEVELOPMENT" means the lease of the Property and the development of approximately twenty-four (24) units of rental housing, of which eleven units shall be affordablc to Very Low Income and Low Income Households according to the terms of this Agreement. Section 1.8 "LOAN" means thc loan of funds provided by the City to the Borrower pursv__a~t to this Agreement. Section 1.9 "LOAN DOCUMENTS" are collectively this Agreement, the Note, the Deed of Trust, and the Regulatory Agreement, as they may be amended, modified, or restated from time to time, along with all exhibits and attachments to these documents. Section 1.10 "LOW INCOME HOUSEHOLD" mcans a household whose annual income does not exceed sixty percent (60%) of the median income for the San Jose Metropolitan Area as determined by HUD with adjustments for ~,laller and larger households. Section 1.11 "NOTE" means that promissory note executed by the Borrower in favor of the City'evidencing the Loan in an orighufl principal amount not to exceed Two Million Seven Hundred Five Thousand Dollars ($2,705,000), a form of which is attached as Exhibit D. Section 1.12 '~PAYMENT DATE" means the paYment date specified in Section 2.7 of this Agrcement. Section 1.13 "PROPERTY" means the parcel of real property located in the City of Cupertino leased by the Borrower, as more particularly described in Exhibit A attached to this Agreexi~ent. Section 1.14 "REGULATORY AGREEMENT" means the agreement to be executed by the City and the Bon'ower and recorded against the Property upon the Borrower's acquisition of the Property substantially in the form attached as Exhibit B attached to the Agreei~ient. 144\121~117883.7 2 1,.2 -/0 Section 1.15 "TERM" means the term of the Loan as specified in Section 2.4. Section 1.16 "VERY LOW INCOME HOUSEHOLD" means a household whose annual incomc does not exceed fifty percent (50%) of the median income for the San Jose Metropolitan Area as det~m~ined by HUD with adjustments for smaller and larger households. ARTICLE 2 TERMS OF LOAN Section 2.1 LOAN. The City agrees to provide a nonrecourse loan of funds to the Borrower under the terms and conditions of this Agrecment. Section 2.2 AMOUNT OF LOAN. On and subject to the terms and ionditions of this · Agreement, the City agrees to make and the Borrower agrees to accept a loan in an amount not to exceed Two Million Seven Hundred Five Thousand Dollars ($2,705,000) Million Eight Hundred Thousand Dollars ($2,800,000) evidenced by the Note. Section 2.3 INTEREST. The Loan shall not bear interest. Section 2.4 SECURITY. Borrower shall secure its obligation to repay the Loan by executing the Deed of Trust, in substantially the form attached hereto as Exhibit C and recording _ it as a lien against Borrower's leasehold interest in the Property. Section 2.5 TERM OF LOAN. The principal of the Loan and all accrued interest thereon shall be due and payable on the earliest of(a) fifty-five (55) years from the date of the Note or (b) an Event of Default by the Borrower which has not been cured as pwvided for in this Agreement. Section 2.6 USE OF FUNDS. Loan proceeds may be used only for the costs and in the amount specified in the Budget, as well as any revisions to the Budget which are approved in writing by the City. The Borrower may exceed the budgeted amount for each item in the Budget in an amouht not to exceed fifteen percent (15%), provided that the total Loan amount is not exceeded. Changes in the Budget in excess of fifteen percent (15%) will require the prior written consent of Lender. Failure of Lender to disapprove a change in the Budget within fifteen (15) days following Lender's receipt of Borrower's written request shall be deemed approval of such change by Lender. Section 2.7 REPAYMENT OF THE LOAN. Subject to provisions of Section 2.?.(a), begi,nlng on the July 1, 2004 and continuing through each July 1st thereafter throughout the Term (each such July 1st is refeiied to as a "Payment Date"); annual payments shall be made to City by Borrower in an amount equal to fifty percent (50%) of Surplus Cash (as dcfined belOw) only to the extent thnt there exists Surplus Cash resulting from operation of the Development during the calendar year preceding the applicable Payment Date. Notwithstanding the foregoing, _ any principal and interest remaining outstanding at thc expiration of the T¢ilU shall be forgiven by the City. 144\121H 17883.7 (a) Special Definitions. The following special dct:inltions shall apply for purposes of this Section 2.7: (1) "Surplus Cash" in a particular calendar ycar shall mean the amount by which Gross Revenue (as defined below) exceeds Annual Operating Expenses (as defined below). (2) "Cross Revenue" with respect to a particular calendar year shall mean all revenue, income, receipts, and other consideration actually received from operation and leasing of the Development. Gross Revenue shall not include tenants' security deposits, loan proceeds, insurance pwceeds, capital contributions or similar advances. (3) "Annual Operating Expenses" with respect to a particular calendar' year shall mean all expenses paid by following costs reasonably and actually incurred for operation and maintenance of the Development: property taxes and'assessments imposed on the Development; debt service currently due on a non-optional basis (excluding dcbt service due . from residual receipts or surplus cash of thc Development) on loans associated with development of the Development; property management fees and rdmbursca~ents in the' amount of Four Hundred Twenty Dollars ($420) per unit for the initial year and increased annually thereafter at no more than the increase in the consumer price index for the San Francisco Bay Area Metropolitan Area; premiums for property dama§e and liability insurance; utility services not paid for directly by tenants, including water, sewer, and trash collection; maintenance and repair; any annual license or certificate of occupancy fees required for operation .of the Development; security services; advertising and marketing; cash deposited into reserves for capital replaceii~ents of Development improvements in an amount not to exceed reserve requirements imposed by the lender of the permanent loan or as otherwise approved by the City; cash deposited into an operating reserve in an amount not to exceed the amount required in connection with thc permanent loan, or any greater amount approved by the City; payment of any previously unpaid portion of a development fee; if such fee has been approved by the City, required extraordinary operating costs; and other ordinary and reasonable operating expenses not listed above. Section 2.8 PREPAYMENT OF LOAN. No prepayment penalty will be charged to the Borrower for payment of all or any portion of the Loan amount prior to the end of the Loan t~m~ described herein. Section 2.9 SUBORDINATION OF DEED OF TRUST AND REGULATORY AGREEMENT. The City agrees to subordinate the Deed of Trust and the Regulatory Agreement to the construction and permanent bond loan made by the City as Issuer and Cupertino National Bank as bond owner representative in an amount not to exceed One Million Six Hundred Thousand Dollars ($1,600,000) and any regulatory agreements related to thereto. 144H21H 17883.7 4 ARTICLE 3 LOAN DISBURSEMENT Section 3.1 DISBURSEMENT. Disbursement of Loan pwceeds shall not exceed Two Million Seven Hundred Five Thousand Dollars ($2,705,000). The City must approve all requests for payment prior to disbursement of Loan proceeds for payment of any costs incurred on the Development. Section 3.2 CONDITIONS PRECED~iT TO DISBURSEMENT. The City shall not bc obligated to make any disbursements of Loan proceeds or take any other action under the Loan Documents unless the following conditions precedent arc satisfied prior to the disbursement for loan: (a) Thc Borrower has executed and delivered to the City this Agre~uient and the Note, thc Deed of Trust and Regulatory Agreement; (b) The Borrower has provided to the City a certificate of liability and property insurance or copies of the insurance policies, which policy shall be approved by the City Attorney;, and (¢) Concurrently with the acquisition of the Property by the Borrower the City shall receive an ALTA lender's policy of title insurance fi'om a title insurance company approved by the City in a fo, al acceptable to the City; (d) There exists no Event of Default nor any act, failure, omission or condition that would constitute an Event of Default. Section 3.3 DISBURSEMENT OF LOAN PROCEEDS. The City shall approve all requests for payment prior to dishurs¢iiient of Loan proceeds for payment of costs incurred on the Development. The CDBG portion of the Loan shall be disbursed directly to the County of Santa Clara County Special Fire District for as partial payment for the Borrower's rent for the Property. The balance of the Loan shall be deposited in a controlled account with Cupertino National Bank for disbursement to Borrower by Cupertino National Bank to fund construction costs of the Development. Disbursements shall be made to Borrower within fourteen (14) days following receipt by Cupertino National Bank of Borrower's disbursement request. Requests for funds shall be made once a month unless the Borrower can show a need for a more frequent disbursement of funds. Dishurs~ment requests shall be accompanied by invoices or receipts evidencing the costs incurred or expended by Borrower in the preceding month. At the request of the City, the Borrower shall provide the City with satisfactory documentation evidencing the payment of expenses previously funded by the City. ARTICLE 4 DEVELOPMENT ACTIVITIES Section 4.1 COMMENCEMENT OF CONSTRUCTION. Thc Borrower shall commence construction of the Development no later than the time specified in the ground lease for the Property between the Borrower and County of Santa Clara County Special Fire District. Section 4.2 COMPLETION OF CONSTRUCTION. The Borrower shall diligently pwsecute construction of the Development to completion, and shall complete construction of the Development no later than twenty four (24) months following commencement of construction. Borrower shall pwvide proof of completion as evidenced by the issuauce of a certificate of occupancy for the Development by the City. Section 4.3 CONSTRUCTION RESPONSIBILITIES. Borrower shall be solely responsible for all aspects of Borrower's conduct in connection with the Development, including, but not limited to, the quality and suitability of the Development's plnn~ and specifications, the supervision of construction work, and the q~slifications, financial condition, and performance of all architects, engineers, contractors, subcontractors, suppliers, consultants, and property managers. Section 4.4. MAINTENANCE. The Borrower hereby agrees that, prior to completion of the Development, the portions of the Property undergoing construction shall be maintained in a neat and orderly condition to the extent practicable and in accordance with industry health and safety standards, and that, once the Development are completed, the Development shall be well maintained by the Borrower as to both exte~ml and internal appearance of the units, the common areas, and the open spaces. The Borrower shall maintain the Development in good repair and working order, and in a neat, clean and orderly condition, including the walkways, driveways, alleyways and landscaping, and from time to time make all necessary and proper repairs, renewals, and replacements. ARTICLE 5 ONGOING OBLIGATIONS Section 5.1 APPLICABILITY. The conditions and obligations set forth in this Article 5 shall apply throughout the Term~ unless a different period of applicability is specified for a particular condition or obligation. Section 5.2 AFFORD ABIL1TY RESTRICTIONS AND TERM. The term of the Regulatory Agreement shall begin on the date of recordation and shall end on that date which is fifty-five (55) years following the date of recordation of the Regulatory Agreement. The Assisted Units shall be maintained at the affordability levels as follows: five (5) Assisted Units shall be occupied or held vacant and available for rental by Very Low Income Households and six (6) Assisted Units shall be occupied or held vacant and available for rental by Low Income Households. Borrower shall make a good faith effort to lease vacant units to eligible households as soon as practicable. The maximum rent which may be charged by Borrower for the Assisted Units to be the rents set forth in the Regulatory Agreement. Section 5.3 TAX AND ASSESSMENTS. Unless exempted from such payment, the Borrower shall pay all real and personal property taxes, assessments and charges and all 144\121H 17883.7 6 l~anchise, income, employment, old age benefit, withholding, sales, and other taxes assessed against it, or payable by it, at such times and in such manner as to prevent any p~alty from accruing, or any line or charge from attaching to the Property; provided, however, that the Borrower shall have thc fight to contest in good faith, any such taxes, assessments, or charges. In the event the Borrower exercises its right to contest any tax, assessment, or charge against it, the Borrower, on final determination of the proceeding or contest, shall immediately pay or discharge any decision or judgment rendered against it, together with all costs, charges and interest. Section 5.4 MANAGEMENT AGENT; PERIODIC REPORTS. (a) Manazement Agent. The Development shall at all times be managed by an experienced management agent, with demonstrated ability to operate residential facilities like the Development in a manner .that will provide decent,'safe, and sanitary housing. The City approves Borrower as the initial management agent of the Development. Co) Books, Records and Reports. For purposes of such periodic reviews, the Borrower shall make available to the City for inspection all books and records with respect to the Development. Borrower shall provide its annual audit to the City within thirty (30) days following the completion and acceptance of the audit by Borrower. ARTICLE 6 INDEMNITY AND INSURANCE Section 6.1 INSURANCE COVERAGE. The Borrower shall cause to have in full force and effect during the term of the Loan~ property in.surance and public liability insurance, to protect against loss from liability imposed by law for damages on account of bodily injury, including death therefrom, suffered or alleged to be suffered by any person or persons resulting directly or indirectly from any acts of thc Borrower. Such property damage and bodily injury insurance shall also provide for and protect the City against incurring any legal cost in defending claims for .alleged loss. Such bodily injury and property damage insurance shall name the City as additional insureds. Such bodily injury and property damage insurance shall be in the following amounts: a general aggregate amount of not less than One Million Dollars ($1,000,000); not less than Five Hundred Thousand Dollars ($500,000) of bodily injury and property dnmage insurance; provided, however, the limitation on the amount of insurance shall not limit the responsibility of the Borrower to indemnify the City or pay damages on account of injury to persons or property resulting from the Borrower's activities or the activities of any other person or persons for which the Bo,uwer is othenvise responsible. The insurance limits shall be increased every five (5) years as reasonably deemed appropriated by the City Attorney. Upon the City's request during the term of the Loan, the Borrower shall provide certificates of insurance, in form and with insurers reasonably acceptable to the City, evidencing compliance with the requirements of this Section, and shall provide complete copies of such insurance policies naming the City as an additional insured. 144H21H 17883.7 ? Section 6.2 NON-LIABILITY OF OFFICIALS, EMPLOYEES AND AGENTS. The City shall not be personally hable to the Borrower for any obligation created under the terms of this Agreement except in the case of actual fraud or willful misconduct by such person. Section 6.3 INDEMNITY. Except for the negligence or willful misconduct of thc City, the Borrower undertakes and agrees to defend, indemnify, and hold harmless the City from and against all suits and causes of action, claims, losses, demands and expenses, including, but not limited to, reasonable attorney's fees and costs of litigation, damage or liability of any nature whatsoever, arising in any manner by reason of or incident to the performance of this Agreement on the part of the Borrower or any contractor or subcontractor of the Borrower. ARTICLE ? DEFAULT Section 7.1 EVENTS OF DEFAULT. The occurrence of-any of the following events shall constitute an "Event of Defanlt" under this Agreement: (a) the Borrower's failure to pay when due any sums payable under the Note or any advances made by the City under the Deed of Trust or this Agreement; and (b) the Borrower's failure to obtain and maintain the insurance coverage required under this Agreement. (c) Any substantial or continuous breach by Borrower of any material obligations on Borrower imposed in the Loan Documents which may materially adversely effect the Cit?s security. Section 7.2 NOTICE OF DEFAULT AND OPPORTUNITY TO CURE. For Events of Default, the City shall give written notice to the Borrower of any Event of Default by specifying: (a) the nature of the event or deficiency giving rise to the Default, Co) the action required to.cure the deficiency, if an action to cure is possible, and (c) a date, which shall not be less than thirty (30) days for any monetary default and sixty (60) days for nonmonetary default from the date of receipt of the notice or the date the notice was refused, by which such action to cure must be taken, or if a cure cannot be accomplished in sixty (60) days, a reasonable time thereafter. Section 7.3 CITY'S REMEDIES. Upon the happening of an Event of Default by the Borrower and a failure to cure said Event of Default within the time specified in the notice of Event of Default (if a notice is required), the City's obligation to disburse Loan proceeds shall term'mate, and the City may also proceed with any or all of the following remedies in any order or combination the City may choose in its sole discretion: (a) Terminate this Agreement, in which event the entire principal amount outstanding under the Note shall immediately become due and payable at the option of the City; i44H21\117883.7 8 (b) Pursue any other remedy allowed at law or in equity. Section 7.4 BORROWER'S REMEDIES. Upon the fault or failure of the City to meet any of its obligations under this Agreement, the Borrower may: (a) Demand payment from the City of any sums due the Borrower; and/or (b) Pursue any other ~eiiiedy allowed at law or in equity. ARTICLE 8 GENERAL PROVISIONS Section 8.1 RECORDS. The Borrower shall be accountable to the City for all funds disbursed to the Borrower pursuant to this Agrc~nent. The Borrower agrees to maintain records that accurately and fully show the date, amount, purpose, and payee of all expenditures drawn from Loan funds, and to keep all invoices, receipts, and other documents related to expenditures from said Loan funds for not less than three years after completion of the Development. Section 8.2 NONDISCRIMINATION. The Borrower shall not discriminate or segregate in the development, conslruction, use, enjoyment, occupancy, conveyance, lease, sublease, or rental of any part of the Property on the basis of race, color, ancestry, national .-. origin, religion, sex, sexual preference, age, marital status, family status, sourcc of income, physical or mental disability, Acquired Immune Deficiency Syndrome (AIDS) or AIDS-related conditions (ARC), or any other arbitrary basis. The Borrower shall othcrwisc comply with all apphcshle local, state, and federal laws concu,6ng discrimination in housing. Section 8.3 NONRECOURSE. The City's sole recourse in the event of an Event of Default shall be to the Property, except in the event of(i) fraud by the Borrower, (ii) any material misrepresentation made by the Borrower to the City in connection with the Loan, (iii) misappropriation by the Trustor of any rents, security deposits, or insurance or condeumation proceeds or (iv) commission of bad faith waste by the Borrower. The foregoing provisions shall not prevent recourse to the collateral security for the loan or constitute a waiver, release or discharge of or otherwise affect the obligation to pay, any indebtedness evidenced by this Note. Section 8.4 GOVERNING LAW. This Agreement shall be interpreted under and be governed by the laws of the State of California, except for those provisions relating to choice of law or those provisions preempted by federal law. Section 8.$ ATTORNEYS' FEES AND COSTS. In the event any Event of Default or any legal or administrative action is commenced to interpret or to enforce the terms of this Al~reement, the prevail/ng party in any such action shall be entitled to recover all reasonable attorneys' fees (which as to any party shall include the allocated reasonable costs for services of any party's in-house co---~el) and costs in such action. Section 8.6 TIME. Time is of the essence in this Agreement. 144H21~117883.7 9 /~2 - / 7 Section 8.7 CONSENTS AND APPROVALS. Any consent or approval of the City or 'the Borrower required under this Agree/iient shall not be delayed or un~asonably withheld. Any approval required under this Agreement shall be in writing and executed by an authorized representative of the party granting the appwval. Any request by Borrower for thc Ciys consent or approval shall be granted or denied by thc City within ten (10) business days following the Cit?s receipt of such request or such request shall be deemed approved. Section 8.8 NOTICES, DEMANDS AND COMMUNICATIONS. Fo,iial notices, demands and communications between the Borrower and the City shall be s~tY/ciently given and shall not be deemed given unless dispatched by registered or c~C~fied mail, postage prepaid, return receipt requested, or delivered personally, to the principal offices of the Borrower and the City as follows: CITY: City of Cupertino 10300 Torte Avenue Cupertino, CA 95014 Attn: City Manager BORROWER: Cupertino Community Services, Inc. 10185 North Stelling Road Cupertino, CA 95014 Atto: Executive Director with copy to: BRff)GE Housing Corporation 1 Hawthorne Street, Suite 400 San Francisco, CA 94105 Attn: President Section 8.9 BINDING UPON SUCCESSORS. All pwvisions of this Agreement shall be binding.upon and inure to the benefit of the heirs, administrators, executors, successors~in- interest, transferees, and assi~o~.~ of each of the parties; pwvided, however, that this section does not waive the prohibition on assignment of this Agreement by the Borrower without the City's consent. Section 8.10 RELATIONSHIP OF PARTIES. The relationship of the Borrower and the City for this Development under this Agreement is and at all times shall remain solely that of a debtor and a creditor, and shall not be construed as a joint venture, equity venture, partnership. Section 8.11 ASSIGNMENT AND ASSUMPTION. Other than to an affiliate of the Borrower or to a pa~h~ership of which an ~t~liate of the Borrower is the general paflner, the Borrower shall not assign any of its interests under this Agree~ent to any other party without the prior written consent of the City. Any unauthorized assi?ment shall be void. Section 8.12 WAIVER. Any waiver by the City or the Borrower of any obligation in this Agreement must be in writing. No waiver will be implied from any delay or failure by the 144\121\117883.7 City to take action on any breach or default of the Borrower or to pursue any remedy allowed under this Agree~i~ent or under applicable law, Any extension of time granted to the Borrower to perfo., any obligation under the Loan Documents shall not operate as a waiver or release from any of its obligations under this Agr.e~,,,ent. Consent by thc City to any act or omission by thc Borrower shall not be construed to be a consent to any other or-subsequent act or omission or to waive the requirement for the City's written consent to future waivers. Section 8~13 INTEGRATION. This Agreement, including exhibits, shall constitute the entire agreement of the parties, and supei.~ede any and all prior negotiations. Section 8.14 AMENDMENTS AND MODIFICATIONS. Any amendments or modifications to this Agreement must be in writing, and shall be made only if executed by both the Borrower and the City. Section 8.15 SEVERABIL1TY. Every pwvision of this Agreement is intended to be severable. If any provision of this Agreement shall be held invalid, illegal, or unenforceable by a court of competent jurisdiction, the validity,-legality, and enforceability of the remaining pwvisions shall not in any way be affected or impaired. Section 8.16 COUNTERPARTS. This A/reement may be executed in counterparts, each of which shall constitute an original document. IN WITNESS WHE~OF, the parties hereby have executed this Agre¢~aent as of thc date first above written. BORROWER: Cupertino Community Services, a California nonprofit public benefit corporation By:. Its: CITY: City of Cupertino, a m.nlcipal corporation - By:. EXI-II~IT A PROPERTY 144\121~117583.7 A-1 /~.. _~4t EXI-I~RIT B BUDGET 144~121~117883.7 EXHIBIT C PROMISSORY NOTE 144~121~117883.7 C-! EXHIB~D DEED OF TRUST 144\121\117883.7 D-1 /;2- o'2.¢ EXI-TmlT E REGULATORY AGREElVI~NT 144~121\117883.7 /,~ - ~?,~' TABLE OF CONTENTS (continued) Page ARTICLE 1 DEFINITIONS ........................................................................................................ 1 SECTION 1.1 "AGREEMENT" .................................................................................................... 1 SECTION 1.2 "ASSISTED UNIT" ............................................................................................... 1 SECTION 1.3 "BORROWER" ...................................................................................................... 2 SECTION 1.4 "BUDGET" ............................................................................................................ 2 SECTION 1.5 "CITY" ................................................................................................................... 2 SECTION 1.6 "DEED OF TRUST" .............................................................................................. 2 SECTION 1.7 "DEVELOPMENT" ............................................................................................... 2 SECTION 1.8 "LOAN" .............: ................................................................................................... 2 SEc'noN 1.9 "LOAN DOCUMENTS" ........................................................................................ 2 SEc'nON 1.10 "LOW INCOME HOUSEHOLD" ....................................................................... 2 . SECTION 1.1 1 '~IOTE". ............................................................................................................... 2 SEC-nON 1.12 "PAYMENT DATE" .............................................. .'. ............................................ 2 SEt-nON 1.13 "PROPERTY" ...................................................................................................... 2 SECTION 1.14 "REGULATORY AGREEMENT" ...................................................................... 2 SECnON 1.15 "TERM" ................................................................................................................ 3 SECTION 1.16 "VERY LOW INCOME HOUSEHOLD" ........................................................... 3 ARTICLE 2 TERMS OF LOAN ................................................................................................. 3 SECTION 2.1 LOAN ..................................................................................................................... 3 SECTION 2.2 AMOUNT OF LOAN ............................................................................................ 3 SEC~ON 2.3 INTEREST....: ........................................................................................................ 3 SEC'nON 2.4 SECURITY ............................................................................................................ 3 SEC~ON 2.5 TERM OF LOAN ................................................................................................... 3 SEt'nON 2.6 USE OF FUNDS .................................................................................................... 3 SEc'noN 2.7 REPAYMENT OF THE LOAN ............................................................................ 3 SECnON 2.8 PREPAYMENT OF LOAN ................................................................................... 4 SEC2UON 2.9 SUBORDINATION OF DEED OF TRUST AND REGULATORY AGREEMENT ............................................................................................................................ 4 ARTICLE 3 LOAN DISBURSEMENT ...................................................................................... $ SEC'noN 3.1 DISBURSEMENT ................................................................................................. 5 SECnON 3.2 CONDITIONS PRECEDENT TO DISBURSEMENT ......................................... 5 SEc'nON 3.3 DISBURSEMENT OF LOAN PROCEEDS .......................................................... 5 ARTICLE 4 DEVELOPMENT ACTIVITIES .......................................................................... $ SEC~ON 4.1 COMMENCEMENT OF CONSTRUCTION ....................................................... 6 SE~u-iON 4.2 COMPLETION OF CONSTRUCTION ................................................................ 6 SEc'noN 4.3 CONSTRUCTION RESPONSIBILITIES ....................................................... '. ..... 6 SECTION 4.4 MAINTENANCE ................................................................................................... 6 ARTICLE $ ONGOING OBLIGATIONS ................................................................................. 6 SEt. ON 5.1 APPLICABILITY ............................................ · ...................................................... 6 SEc'noN 5.2 AFFORDABIL1TY RESTRICTIONS AND TERM ............................................. 6 SE~-nON 5.3 TAX AND ASSESSMENTS ................................................................................. 6 144~121~117883.7 TABLE OF CONTENTS (continued) Pa~e SscrIoN 5.4 MANAGEMENT AGENT; PERIODIC REPORTS ............................................. ? ARTICLE 6 INDEMNITY AND INSURANCE ........................................................................ ? SECTION 6.1 INSURANCE COVERAGE .................................................................................. 7 SECTJ[ON 6.2 NON-LIABILITY OF OFFICIALS, EMPLOYEES AND AGENTS ................... 8 S~.CnON 6.3 INDEMNITY ........................................................................................................ 8 ARTICLE ? DEFAULT ............................................................................................................... 8 SEcu'lON 7.1 EVENTS OF DEFAULT ....................................................................................... 8 SEc'nON 7.2 NOTICE OF DEFAULT AND OPPORTUNITY TO CURE ............................... 8 SECT[ON 7.3 CITY'S REMED~S ................. ~ ............................................................................. g SECT[ON 7.4 BOI~q. OW'ER'S R.EMEDIES ................................................................................. 9 ARTICLE 8 GENERAL PROVISIONS ..................................................................................... 9 SEt;nON 8.1 RECORDS ............................................................................................................. 9 SECTION $.2 NONDISCRIMINATION ...................................................................................... 9 SECTION 8.3 G-OVERNINO LAW ...... ~ ....................................................................................... 9 SECT[ON 8.4 ATTORNEYS' FEES AND COSTS ...................................................................... 9 SECTION 8.5 TIME ...................................................................................................................... 9 SECTION 8.6 CONSENTS AND APPROVALS ....................................................................... 10 SECHON 8.7 NOTICES, DEMANDS AND COMMUNICATIONS ....................................... 10 SECnON 8.8 BINDING UPON SUCCESSORS ....................................................................... 10 SECTION 8.9 RELATIONSI-/~ OF PARTIES .......................................................................... 10 SECTION 8.10 ASSIGNMENT AND ASSUMPTION .............................................................. 10 SECJ~ON 8.11 WAIVER ........................................................................................................... : 10 SECTION 8.12 INTEGRATION ............................................................................. ' .................... 11 SECT[ON 8.13 AMENDMENTS AND MODIFICATIONS ..................................................... 11 SECTION 8.14 SEVERABIL1TY ............................................................................................... 11 EXHIBIT A PROPERTY .................................................................................................. A-1 EXHIBIT B BUDGET ....................................................................................................... B-1 EXHIBIT C PROMISSORY NOTE .................................................................................. C- 1 EXNIRIT D DEED OF TRUST ................................................................... D=I EXHIBIT E REGULATORY AGREEMENT ................................................... E-1 144~121~117883.7 RECORDING KEQUESTED BY AND WHEN RECORDED MAIl. TO: City of Cupertino 10300 Tone Avenue Cupertino, California 95014 Attention: Executive Director No fee for recording pursuant to Government Code Section 27383 REGULATORY AGREEMI~,NT This Regulatory Agreement (the "Agreement") is made and entered into as of this__ day of ,2001 by and between the City of Cupertino, a municipal corporation (the "City"), and Cupertino Community Services, Inc., a California nonprofit public benefit corporation (thc "Owner"). 1. The City and the Owner have entered into a Loan Agreement (the "Loan Agreement") under which the City provided a loan (the "Loan") to the Owner for use, together with funds obtained from other sources, for the acquisition of the property located in Cupertino, California more particularly described in the attached Exhibit A (the "Property"), and development of twenty-four (24) residential units on the Property (the "Development"). Capitalized temps used but not defined in this Agreement shall have the meanings set forth in the Loan Agreement. 2. In consideration of the Loan at an interest rate'substantially below the market rate, the Owner has further agreed to observe all the terms and conditions set forth below. 3. In order to ensure that the entire Development will be used and operated in accordance with these conditions and restrictions, the City and the Owner wish to enter into. this Agreement. · THEREFORE, the City and the Owner hereby agree as follows. ARTICLE 1 DEFINITIONS Section 1.1 Definitions. When used in this Agreement, the following terms shall have the respective meanings assigned to them in this Art/cie 1. (a) "Adjusted Income" shall mean the total anticipated ~nmmt income of all persons in a household, as calculated in accordance with 25 California Code of Regulations Section 6914 or pursuant to a successor State housing program that utilizes a reasonably similar method of calculation of adjuste~tiucome. In the event that no such program exists, the City shall provide the Owner with a reasonably simi!ar method of calculation of adjusted income as pwvided in said Section 6914. Co) "City" Shall mean the City of Cupertino. "Agreement" shall mean this Regulatory Agree~ent. (d) "Deed of Trust" shall mean the deed of trust to the City on the Property which secures repayment of the Loan and performance of the Loan Agreeiiient and this Agreement. (e) "Development" shall mean the Property and the twenty-four (24) residential units to be developed on the Property, as well as all landscaping, roads and parking spaces existing thereon, as the same may from time to time exist. (fi "Loan" shall mean all funds loaned to the Owner pursuant to the Loan Agreement. (g) "Loan Agreement" shall mean the Loan Agreement, by and between the City and the Owner of even d_ate. (It) "Median Income" shall mean the median gross yearly income, adjusted for household size, in the County of Santa Clara, California, as published from time to time by the State of California. In the event that such income det~,,,inations are no longer published, or are not updated for a period of at least eighteen (18) months, the City shall provide the Owner with other income dctcrmirtations which arc reasonably similar with respect to methods of calculation to those previously published by the State. (i) '~Note" shall mean the promissory note from thc Owner to the City evidencing all or any part of the Loan. (j) "Owner" shall mean Cupertino Community Services, Inc., a California nonprofit public benefit corporation, and its successors and assigns to the Development. 144\121~1101o4.2 2 /~. ,~? ~ (lc) "Property" shall mean the parcel of real property located in Cupertino, California, as more particularly described in Exhibit A. (1) "Qualif~/in~ Household" shall mcan a Very Low Income Household. (m) '~Rent" shall mean the total of monthly payments by the Tenant of a Unit for the following: (1) use and occupancy of the Unit and land and associated facihties, including parking; (2) any separately charged fees or service charges assessed by the Owner which are required of ail Tenants, other than security deposits; (3) the cost of an adequate level of service for utilities paid by the Tenant, including garba§e collection, sewer, water, electricity, gas and other heating, cooking and refrigeration fuel, but not telephone service, cable television service or any other utility or service permitted to be c.xcluded from thc calculation of Rent pursuant to the terms of 25 Califomia Code of Regulations Section 6918; and (4) any other interest, taxes, fees or charges for use of the land or associated facilities and assessed by a public or private entity other than thc Owner, and paid bythe Tenant. (n) "Tenant" shall mean a household occupying a Unit. (o) "Term" shall mean the term of this Agreement, which shall commence on the date of this Agreement and shall continue until the fifty-fifth (55th) anniversary of the date of this Agreement. (p) 'q..lnit" shall mean one of the twenty-four (24) units to be constructed on the Property. (q) "Vent Low Income Household" shall mean a household with an Adjusted Income that does not exceed the lesser of(l) fifty percent (50%) of Median Income, adjusted for actn_nl household size, or (2) the qualifying limits for very low income households, adjusted for household size, as established and amended from time to time pursuant to Section 8 of the United States Housing Act of 1937, and as published by thc State of California Deparhl~ent of Housing and Community Development. (r) "Very Low Income Units" shall mcan the Units which, pursuant to Section 2.1 below, are required to be occupied by Very Low Income Households. ARTICLE 2 AFFORDABILITY AND OCCUPANCY COVENANTS Section 2.1 Occupancy Reanirement. All twenty-four (24) Units shall be rented to and occupied by or, if vacant, available for occupancy by Very LOw Income Households. Section 2.2 Allowable Rent. Subject to the provisions of Section 2.3 below, the Rent charged to Tenants of the Very Low Income Units shall not exceed one-twelfth (1/12) of thirty percent (30%) of fifty percent (50%) of Median Income, adjusted for household size. Section 2.3 Increase Income of Tenants. If upon recertification of a Tenant's income, the Owner determines that a Very Low Income Household no longer qualifies as a Qualified Household, the formerly Very Low Income Household may charge rent in the amount of 30% of the Tenant's acVml gross income. · qection 2.4 Other Rules. If the Development is subject to state or federal roles governing funding sources such as low-income housing tax credits (the "Other Rules"), the provisions of the Other Rules regarding assumed household size, shall apply in place of the provisions set forth in the applicable sections of this Agreement. Upon such time as the requirements of the Other Rules no longer apply to the Development, the terms and conditions of this Agreement shall govern the occupancy of this Development. Section 2.5 Nondiscrimination. Owner shall not discriminate or segregate in the development, construction, use, enjoyment, occupancy, conveyance, lease, sublease, or rental of any part of the Property on the basis of race, color, ancestry, national origin, religion, sex, sexual preference or orientation, age, marital status, family status, source of income, physical or mental disability, Acquired Immune Deficiency Syndrome (AIDS) or AIDS-related conditions (ARC) acquired or perceived, or any other arbitrary basis. Borrower shall otherwise comply with all applicable local, state, and federal laws conccmin§ discrimination in housing. ARTICLE 3 INCOME CERTIFICATION AND REPORTING Section 3.1 Income Certification. The Owner will obtain, complete and maintain on file, immediately prior to initial occupancy and ann~mlly thereafter, Income certifications from each Tenant ren6ng any of the Units in substantially the forui approved by the City. Once annually, on a date mutually agreed upon by the Owner and the City, the Owner shall provide the City with a report show/nE the rental rate, the annual income, and household size for each Tenant in the Development in a form approved by the City in its reasonable discretion. Section 3.2 Records. The Owner shall main~in complete, accurate and current records pertaining to the Development, and shall peii~it any duly authorized representative of the City to inspect records, Including records pertaining to income and household size of Tenants. All Tenant lists, applications and walt/nE lists relating to the Development shall at all times be kept separate and identifiable .from any other busIness of the Owner and shall be ma/ntained as required by the City, in a reasonable condition for proper audit and subject to exam/nation during business hours by representatives of the City. The Owner shall retain copies of all materials obtained or produced with respect to occupancy of the Units for a period of at least three (3) 144H21H 19104.2 4 -51 ARTICLE 4 MANAGEMENT OF THE DEVELOPMENT Section 4.1 Maintenance. The Owner hereby agrees that, prior to completion of the Impmv,inents, thc portions of the Property undergoing construction shall be maintained in a neat and orderly condition to thc extent practicable and in accordance with indnslmy health and safety stana_,nts, and that, once the Improvements are completed, the Development shall be well maintained by the Owner as to both external and internal appearance of the nnits, the common areas, and the open spaces. The Owner shail maintain the Development in good repair and working order, and in a neat, clean and orderly .condition, including the walkways, driveways, alleyways and landscaping, and from time to time make all necessary and proper repairs, Section 4.2 Management Agent. The Development shall at all times be managed by an experienced Management Agent reasonably acceptsble to the City, with demonstrated ability to operate residential facilities like the Development in a manner that will provide decent, safe, and sanitary housing. Cupertino Community Services, Inc. is hereby approved by the City as the initial Management Agent. ARTICLE $ MISCELLANEOUS Section 5.1 Tenn. The provisions of this Agreement shall apply to the Property for .the entire Term even if the entire Loan is paid in full prior to the end of the Tenn. This Agreement shall bind any successor, heir or assign of the Owner, whether a change in interest occurs voluntarily or involuntarily, by operation of law or otherwise, except as expressly released by the City. The City makes the Loan on the condition, and in consideration of, this provision, and would not do so otherwise. Section $.2 Covenants to Run With the Land. The City and the Owner hereby declare their express intent that the covenants and restrictions set forth in this Agreement shall nm with the land, and shall bind all successors in title to the Property, provided, however, that on the expiration of the T~,m of this Agreement said covenants and restrictions shall expire. Section $.3 Enforcement by the City. If the Owner fails to perform any obligation under this Agreement, and fails to cure the default within thirty (30) days after the City has notified the Owner in writing of the default or, if the dcfault cannot be cured within thirty (30) days, failed to commence to cure within thirty (30) days and thereafter diligently pursue such cure, the City shall have.the fight to enforce this Agreement by any or all of the remedies provided in the Loan Agree, ihent. Section 5.4 Attorneys Fees and Costs. In any act/on brought to enforce this Agreement, the prevailing party shall be entitled to all costs and expenses of suit, including attorneys' fees. This section shall be interpreted in accordance with California Civil Code Section 1717 and judiciai decisions interpreting that statute. Section 5.5 Recording and Filing. Thc City and the Owner shall cause this Agreement, and ail amendments and supplements to it, to be recorded in thc Officiai Records of the County of Contra Costa. Section 5.6 Governing Law. This Agreement shall be governed by the laws of the State of California. Section 5.7 Waiver of Requirements. Any of the requireraents of this Agreement may be expressly waived by the City in writing, but no waiver by the City of any requirement of this Agreement shall, or shall be deemed to, extend to or affect any other provision of this Agreement. Section 5.8 Amendments. This Agreement may be emended only by a written instrument executed by all thc parties hereto or their successors in title, and duly recorded in the real property records of the County of Contra Costa. Section 5.9 Notices. Any notice requirement set forth herein shall be deemed to be satisfied three (3) days after mailing of the notice first-class United States certified mail, postage ._ prepaid, addressed to the appwpriate party as follows: Owner: Cupertino Community Services, Inc. 10185 North Stelling Road Cupertino, California 95014 Executive Director: Jaclyn Fabr6 City: City of Cupertino 10300 Torte Avenue Cupertino, California 95014 City Manager: Dave Knapp Such addresses may be changed by notice to the other party given in the same manner as provided above. Section 5.10 Capitalized Terms. All capitalized terms not defined herein shall have the meaning set forth in the Loan Agreement. Section 5.11 Severabilitv. If any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions of this Agreement shall not in any way be affected or impaired thereby. 144~121\119104.2 6 IN WITNESS WHEREOF, the City and the Owner have executed this Agreement by duly authorized representatives, all on the date first written above. OWNER: Cupertino Community Services, Inc., a California nonprofit public benefit corporation By: ATTEST: CITY: City of Cupertino, a municipal corporation By: By: Its: APPROVED AS TO FORM: By:. 144~121~110104.2 7 /'~ - 3 ~ NO FEE DOCUIVIENT Recording requested by and when recorded, mail to: City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 Arm: City Clerk CONSTRUCTION AND PERMANENT DEED OF TRUST, ASSIGNMENT OF RENTS, AND SECURITY AGREEMENT THIS DEED OF TRUST, ASSIGNlVI~NT OF RENTS, AND SECURITY AGREEMENT ("Deed of Trust") is made this day of ,2001, by Cupertino Community Services, Inc., a California nonprofit public benefit corporation ("Trustor"), to , a California Corporation as trustee _ ("Trustee"), for the benefit of the City of Cupertino, a municipal corporation ("Beneficiary"). GRANT IN TRUST 1. GRANT. Trustor, in consideration of the indebtedness referred to below, hereby irrevocably grants and conveys to Trustee, IN TRUST, WITH POWER OF SALE, for the benefit and security of Beneficiary, all of Trustor's interest in the property located in Cupertino, California, and described in the attached Exhibit A, incorporated herein by this reference (the TOGETHER WITH all interest, estates or other claims, both in law and in equity which Trustor now has or may hereafter acquire in the Property;, all buildings, structures, fixtures, improvements, signs, and landscaping now or hereafter erected or located on the Property, including all equipment, and machinery used for supplying or distributing heating, cooling, electricity, gas, water, air, and light, all kitchen and laundry appliances such as washers, dl~ers, refrigerators, garbage disposals, ovens, ranges, dishwashers, all plumbing and bathroom fixtures, all security and access control equipment, fire prevention and extinguishment equipment, elevators, floor coverings, window covetings, paneling, cabinets, (provided, however, that Tmstor shall have the right to remove, if necessary, such fixtures, furnishings, and equipment for the purpose of replacement with similar items of the same quality perfo,,~Jng the same functions, which replacements shall themselves become part of this grant); all building material and equipment either now or hereafter delivered to the Property and intended to be installed therein or any such material and equipment purchased for the Property whether or not located on the Pwperty; all reserves, accounts, deferred payments, and refunds relating to development on the Property; all rents and income generated by the Property or improvements thereon (subject 144\121~119103.4 however to the assignment of feints to Lender conta/ned herein); all leases, subleases and rental agreements covering the Property or any portion thercofnow existing or hereafter entered into, and all interests of Trustor in security deposits, advance rentals, accounts, or payments of similar nature with respect to such leases, subleases, or rental agreements; all casements and rights-of- way appurtenant to thc Propen'y, including parking and recreational easements, and all interests of Trustor in any land lying within the fight-of-way of any street, sidewalks, and areas of land adjacent to or used in connection with thc Property; all development rights and credits, air rights, water rights, and oil, gas or mineral rights with respect to the Pwperty; all claims or demands with respect to in.~urance proceeds, and all awards madc for a taking by eminent domain; all interests and rights in any private or government grants, subsidies, loans, or other financing with respect to development on the Property;, all interests in personal property used in and about the Property (except furniture and other personal property of occupants of dwelling units on the Propcrty); all intangible property and rights relating to the Property or operations on the Property, including trade names, goodwill, trademarks, and scrvicc marks; all government permits, approvals, and map rights related to construction on the Property; all architectural, structural, and mechanical p]an,~ specifications, designs, .~mdies, and data with respect to construction of improvements on the Property; all environmental tests, studies and reports with respect to the Property; all current and future claims and rights of action of Trustor against prior owners and op~ators of the Pwperty, neighboring pwpcrty owners and operators, tenants and former tenants, consultants, advisors, and other third parties with respect to environmental or Hazardous Materials contamination and cleanup of the Property under any federal, state, or local ordinances, statutes, regulations, or administrative decisions or common law. All of the foregoing, together with the lh'operty, is herein referred to as thc "Security." OBLIGATIONS SECURED 1. OBLIGATIONS. Tmstor makes this grant for the purpose of securing the following obligations: A. Repayment of the indebtedncss of Trustor to Beneficiary in the principal sum of TWo Million Seven Hundred Five Thousand Dollars ($2,705,000) (the "Loan") evidenced by a Promissory Note executed by Trustor in the amount of Two Million Seven Hundred Five Thousand Dollars ($2,705,000) (the '~lote") on file at the offices of Beneficiary, which is hereby incorporated into this Deed of Trust by this reference or as much as has been disbursed to Tmstor therewith, along with any extensions, amendments, modifications, or renewals to the Note; and B. Payment of any sums advanced by Beneficiary to protect thc security, and priority of this Deed of Trust; and C. Payment of any sums advanced by Beneficiary following a breach of Tmstor's obligation to advance said sums and the expiration of any applicable cure period, with interest thereon as provided herein; and D. Performance of ev6ry obligation, covenant or agreoment of Trustor contained in this Deed of Trust, thc Notc, the Loan..Agre~ent executed between Trnstor and Beneficiary for this loan (the "Loan Agreement"), on file at the offices of Beneficiary, which is hereby incorporated into this Deed of Trust by this reference, and the regulatory agreement executed between Trustor and Beneficiary of even date herewith (thc 'Rcgulatory Agreement"), including all modifications, extensions and renewals of these obligations; and E. Performance of any other obligation or repayment of any other indebtedness of Trustor to Beneficiary, where such evidence o f obligation or indebtedness specifically recites that it is secured by this Deed of Trust; and F. Performance ofeny obligations of Trustor in any other agreements with respect to financing of the Development or the Security the absence of which should adversely affect Beneficiary, whether or not Beneficiary is a party to such agreements. ABSOLUTE ASSIGNMENT OF RENTS AND RIGHT TO POSSESSION 1. ASSIGNMENT. As additional security, Tmstor hereby assigns to Beneficiary: (a) all of the rents, revenues, profi.ts, and income from the Security, any deposits now or hereafter in Trustor's possession which have been collected with respect to the Security, and any reserve or capital funds now or hereafter held by Trustor with respect to construction or operation of the .- Security (collectively, the "Rents"); and (b) the right to enter, take possession of, and manage the Security; provided however that Trustor shall have, before an Event of Default, the exclusive right to possess the Security and to collect Rents and use them in accordance with the Agency Documents. This assiEnraent is intended to be an absolute and present tr~n.~fer of Trustor's interest in existing and future Rents, effective as of the date of this Deed of Trust. 2. ENFORCEMENT. Upon the happening of an Event of Default which remains uncured after expiration 0fthe applicable cure period pursuant to the terms of the Loan Agreement or other Agency Documents, Beneficiary may, in addition to other rights and remedies perm/tted bythe Loan Agreement, this Deed of Trust, or applicable law; (a) enter upon, take possession of, and manage the Security, either in person as a mortgagee-in-possession, by agent, or by a receiver appointed by a court, and do any acts which it deems necessary or desirable to preserve the value, marketability or rentability of the Security, Co) collect all Rents, including those pa.st due and unpaid, and apply the same to pay for the costs and expenses of operation of the Security, including attorneys' fees, and pay off any indebtedness secured by this Deed of Trust, all in such order as Beneficiary may determine, (c) enter upon and take possession of the. Security, and complete construction of any improwu~ents on the Security as provided for in the Plans and Specifications approved under the Loan Agreement or any modifications to the Plans and Specifications or the Project that Beneficiary in its sole discretion believes is appropriate, and/or (d) Beneficiary may make, cancel, enforce, and modify leases and rental agreements, obtain and evict tenants, set and modify rent tams, sue for rents due, enter into, modify, or terminate any conWacts or agreements, or take any legal action, as it deems necessary ._. with respect to the Rents or to development or operation of the Security. 144~121~11"103.4 3. APPOINTMENT OF A RECEIVER. In any action to enforce this assignment, Beneficiary may apply for the appointment of a receiver to take possession of the Security and take whatever measures are necessary to preserve and manage the Security for the benefit of Beneficiary and the public interest. Trustor hereby consents to the appointment ora receiver. The receiver shall have all of the authority over the Security that Beneficiary would have if Beneficiary took possession of the Security under this assignment as a mortgagee-in-possession, includin§ the right to collect and apply Rents and the right to complete construction of improvements. 4. NO WAIVER OF POWER OF SALE. The entering upon and taking possession of the Security and the collection.of Rents shall not cure or waive any default or notice of defanlt hereunder or invalidate any act done in response to such default or notice of default and, notwithstanding the continuance in possession of the Security or the collection and application of Rents, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust or by law upon occurrencc of any Event of Default, including the right to exercise the power of sale. COMMERCIAL CODE SECURITY AGREEMENT 1. GRANT. This Deed of Trust is intended to be a security agreement and financing statement pursuant to the California Commercial Code for any of the items specified above as part of the Security which under applicable law may be subject to a security interest pursuant to the Commercial Code, and Trustor hereby grants Beneficiary a security interest in said items. Beneficiary may file a copy of this Deed of Trust in the real estate records or other appropriate index as a financing statement for any of the items specified as part of the Security. Trustor shall execute and deliver to Beneficiary at Beneficiary's request any financing statements, as well as extensions, renewals, and amendments thereof, and copies of this instrument in such fo~m as Beneficiary may require to perfect a security interest with respect to said items. Trustor shall pay all costs of filing such financing statements and shall pay all reasonable costs of any record searches for financing statements and releases. Without the prior written consent of Beneficiary, Trustor shall not create or pe,-,~it any other security interest in said items. This Deed of Trust constitutes a fixture filing under Sections 9313 and 9402(6) of the California Commercial Code. 2. REMEDIES. Upon TrustOr's breach of any obligation or agreement in the Agency Documents, Beneficiary shall have the remedies of a secured party under the Commercial Code and at Beneficiary's option may also invoke the remedies provided for elsewhere in this Deed of Trnst with respect to said items. Beneficiary may proceed against the items of real property and personal property specified above separately or together and in any order whatsoever. RIGHTS AND OBLIGATIONS OF TRUSTOR 1. PERFORMANCE OF SECURED OBLIGATION. Trustor shall promptly perfol'lii each obligation secured by this Deed of Trust. 144\121~119103.4 2. PAYMENT OF PRINCIPAL AND INTEREST. Trustor shall promptly pay when due the principal and interest on the indebtedness evidenced by the Note. 3. MAINTENANCE OF THE SECURITY. Trustor shail, at the Tmstor's own expense, maintain and preserve thc Security or cause the Security to be maintained and preserved in good condition, in good repair, and in a decent, safe, sanitary, habitable and tenantable condition. Trustor shall not cause or permit any violations of any laws, ordinances, regulations, covenants, conditions, restrictions, or equitable servitudes as they pertain to improvements, alterations, maintenance or demolition on the Security. Trustor shall not commit or p~udt waste on or to the Security. Trustor shall not abandon the Security. Beneficiary shall have no responsibility over maintenance of the Security. In the event Trustor fails to maintain the Security in accordance with the standards in this Deed of Trust, the Lo'an Agreement, or the Regulatory Agreement, Beneficiary and alter any applicable cure periods, may, but shall be under no obligation to, makc such repairs or replacuu,ents as are necessary and provide for payment thereof. Any amount so advanced by Beneficiary, together with interest thereon from the date of such advance at the same rate of indebtedness as specified in the Note (unless payment of such an interest rate would be contrary to applicable law, in which event such s-ms shall bear interest at the highest rate then allowed by applicable law), shall become an additional obligation of Trustor to Beneficiary and shall bc Secured by this Deed of Trust. _ 4. INSPECTION OF THE SECURITY. Tmstor shall p~,a,it Beneficiary to enter and inspect the Security for compliance with these obligations upon 24 hours advance written notice of such visit by Beneficiary to Trustor or Trustofs management agent. 5. LIENS. ENCUMBRANCES. AND CHARGES. Trustor shall discharge any lien or encumbrance not approved by Trustor in writing that may attain priority over this Deed of Trust, as provided for in the DDLA. 6. DEFENSE AND NOTICE OF CLAIMS AND ACTIONS. Trustor shall appear in and defend, at its own expense, any action or proceeding purporting to affect the Security and/or the rights of Beneficiary. Trustor shall give Beneficiary and Trustee prompt notice in writing of the assertion of any claim~ of the filing of any action or proceeding and of any condemnation offer or action with respect to the Security. 7. SUITS TO PROTECT THE SECURITY. Beneficiary shall have power to institute and maintain such suits and proceedings as it may deem expedient (a) to prevent any impairment of the Security or the rights of Beneficiary, (b) to preserve or pwtect its interest in the Security and in the Rents, and (c) to restrain the enforcement of or compliance with any governmental legislation, regulation, or order, if the enforcei~ent of or compliance with such legislation, regulation, or order would impair the Security or be prejudicial to the interest of Beneficiary. 8. DAMAGE TO SECURITY. Trustor shall give Beneficiary and Trustee prompt notice in writing of any damage to the Security. If any building or improvements erected on the '-' Property is damaged or destroyed by an insurable cause, Trustor shall, at its cost and expense, repair or restore said buildings and improvements consistent with the original plans and 144H21\119103.4 specifications. Such work or repair shall be commenced within one hundred twenty (120) days after the damage or loss occurs and shall be complete within one year thereafter. All insurance proceeds collected for such a.mage or destruction shall be applied to the cost of such repairs or restoration and, if such insurance proceeds shall be insufficient for such purpose, Trustor shall make up the deficiency. 9. TITLE. Trustor warrants that Trustor lawfully has legal title to the Security without any limitation on the right to encumber. 10. GRANTING OF EASEMENTS. Trustor may not grant easements, licenses, rights- of-way or other rights or privileges in the nature of easements with respect to the Security except those required or desirable for installation and maintenance of public utilities including water, gas, electricity, sewer, cable television, telephone, or those required by law. 11. TAXES AND LEVIES. Trustor shall pay prior to delinquency, all taxes, fees, assessments, charges and levies imposed by any public authority or utility company which are or may become a lien affecting the Security. However, Trustor shall not be required to pay and discharge any such tax, assessment, charge or levy so long as (a) the legality thereof shall be promptly and actively contested in good faith and by appropriate proceedings, and (b) Trustor maintains reserves adequate to pay any contested liabilities. In the event that Trustor fails to pay any of the foregoing items, Beneficiary may, but shall be under no obligation to, pay the same, after Beneficiary has notified Trustor of such failure to pay and Trustor fails to fully pay such items within seven business days after receipt of such notice. Any amount so advanced by Beneficiary, together with interest thereon from the date of such advance at the same rate of indebtedness as specified in the Note (unless payment of such an interest rate would be contrary to applicable law, in which event such sums shall bear interest at the highest rate then allowed by applicable law), shall become an additional obligation of Trustor to Beneficiary and shall be secm~ by this Deed of Trust. 12. INSURANCE. Trustor shall provide such insurance as required under the DDLA and the Regulatory Agreement. In the event Trustor fails to maintain the full insurance coverage required by this Deed of Trust, Beneficiary, after at least seven business days prior notice to Trustor, may, but shall be under no obligation to, take out the required policies of insurance and pay the premiums on such policies. Any amount so advanced by Beneficiary, together with interest thercon from the date of such advance at the same rate of indebtedness as specified in the Note (unless payment of such an interest rate would be contrary to applicable law, in which event such sums shall bear interest at the highest rate then allowed by applicable law), shall become an additional obligation of Trustor to Beneficiary and shall be secured by this Deed of Trust. 13. CONDEMNATION. All judgments, awards of dAm-ges, settlements and compensation made in connection with or in lieu of taking all or any part of or interest in the Security under assertion of the power of eminent domain ("Funds") are hereby assigned to and shall be paid to Beneficiary. Beneficiary is authorized (but not required) to collect and receive any Funds and is authorized to apply them in whole or in pan upon any indebtedness or obligation secured hereby, in such order and manner as Beneficiary shall deteii~ine at its sole 144\121\119103.4 option. All or any part of the amounts so collected and recovered by Beneficiary may be released to Trustor upon such conditions as Beneficiary may impose for its disposition. Application of all or any part of the Funds collected and received by Beneficiary or the release thereof shall not cure or waive any default under this Deed of Trust. Notwithstanding anything to the contrary set forth herein, Beneficiary shall, prior to the application of the Funds or any portion thereof to the/ndebtedness or other obligations, apply such portion of the Funds as is reasonable and necessary to repair and preserve the value, marketability and rentability of the Security. 14. ACCELERATION ON TRANSFER OF SECURITY: ASSUMPTION. In the event that Trustor, without the prior written consent oftha Beneficiary, sells, agrees to sell, transfers, or conveys its interest in the Security or any pa/'t thereof or interest therein, Beneficiary may at its option declare all sums secured by this Deed of Trust to be immediately due and payable. Th/s option shall not apply in' case of: A. the grant of a leasehold interest to qualifying households who will occupy Project units as provided for under the Agency Documents; or B. sale or transfer of fixtures or personal property pursuant to the grant pwvisions in this Deed of Trust; Consent to one sale or transfer shall not be deemed to be a waiver of the right to require such consent to future or successive transactions. 15. P,.ECONVEYANCE BY TRUSTEE. This trust is intended to continue for the entire term of the Loan. Upon written request of Beneficiary stating that all sums secured by this Deed of Trnst have been paid and upon surrender of this Deed of Trust to Trustee for cancellation and mention, and upon payment by Trustor of Trustee's reasonable fees, Trustee shall reconvey the Security to Trustor, or to the person or persons legally entitled thereto. DEFAULT AND RF. MEDIES 16. EVENTS OF DEFAULT. Any of the events listed in the Loan Agreement as an Event of Default shall also constitute an Event of Default under this Deed of Trust, including, but not limited to, (1) Trustor's failure to pay when due any sums payable under this Deed of Trust, the Note, or the Loan Agreement; (2) Trustor's failure to observe or to p=~£o,m any of its other covenants, agreements or obligations under this Deed of Trust, the Note, or the Loan Agreement; or (3) Trustor's failure to make any payment or pvL form any of its other covenants, agreements, or obligations under any other agreement with respect to financing for the Project or the Security, whether or not Beneficiary is a party to such agreement. l?. ACCELERATION OF MATURITY. Upon the happening of an Event of Default which has not been cured within the times and in the manner provided in the Loan Agreement, Beneficiary may declare all sums advanced to Trustor under the Note and this Deed of Trust immediately due and payable. 144H21H 19103.4 18. BENEFICIARY'S REMEDIES. Upon the happening of an Event of Default which has not been cured within the times and in the manner provided in the Loan Al~'eement., Beneficiary may, in addition to other fights and remedies permitted by the Loan Agreement, the Note, or applicable law, proceed with any or ail of the following remedies: A. Enforce the assignment of rents and right to possession as provided for in this Deed of Trust, and/or seek appointment cfa receiver to take over possession of the Security and collect Rents; B. Enter the Security and take any actions necessary in its judgment to complete construction on the Security as pem~itted under the Assignment of Development Rights executed by Trustor (on file with Beneficiary) and the assignment of rents and right to possession in this Deed of Trust, either in pcrs6n or through a receiver appointed by a court; C. Disburse from Loan proceeds any amount necessary to cure any Event of Default under this Deed of Trust, the Loan Agreement, or the Note; D. Commence an action to foreclose this Deed of Trust pursuant to Caiifomia Code of Civil Procedure Sections 725a, et seq., and/or seek appointment cfa receiver from a court of competent jurisdiction with the authority to protect Beneficiary's interests in the Security, including the authority to complete construction of improvements; E. Deliver to Trustee a written declaration of Default and demand for saie, and a written Notice of Default and election to cause Trustor's interest in the Security to be sold, which notice Trustee or Beneficiary shail duly file for record in the Officiai Records of Santa Clara County, and exercise its power of saie as provided for below; or F. Pursue any other rights and remedies allow at law or in equity. 19. FORECLOSURE BY POWER OF SALE. Should Beneficiary elect to foreclose by exercise of the power of saie contained in this Deed of Trust, Beneficiary shall notify Trustee and shall deposit with Trustee this Deed of Trust (the deposit of which shail be deemed to constitute evidence that the unpaid sums disbursed under thc Note are immediately due and payable), and such receipts and evidence of any expenditures made that are additionally secured hereby as Trustee may ,require. Upon receipt of such notice from Beneficiary, Trustee shall cause to be recorded, published and delivered to Trustor such Notice of Default and Election to Sell as then required by law and by this Deed of Trust. Trustee shall, without demand on Trustor, after lapse of such time as may then be required by law and after recordation of such Notice of Default and after Notice of Saie having been given as required by law, sell the Security, at the time and place'of saie fixed by it.in said Notice of Saie, whether as a whole or in separate lots or parcels or items as Trustee shail deem expedient and in such order as it may determine unless specified otherwise by Trustor, at public auction to the highest bidder for cash in lawful money of the United States payable at thc time ofsaic. Trustee shail deliver to the purchaser its deed or deeds conveying thc property so sold, but without any covenant or warranty, express or implied. The recitals in such 144\121~11S103.4 '-' dccd of any matters of facts shall bc conclnsivc proof of thc truthfulness therenfi Any person, including, without limitation, Trustor, Trustee, or Beneficiary, may purchase at the sale. Trustee may postponc salc of all or any portion of the property by public announcement at such time and place of sale, and from time to time thereafter, and without further notice make such sale at the time fixed by the last postponement, or may, in its discretion', give a new Notice of Sale. After deducting all reasonable costs, fees and expenses of Trnstee, including costs of evidence of title in connection with such sale, Trustcc shall apply the proceeds of sale as follows: (i) first, to the payment of all sums then secured by this Deed of Trnst, in such order and amounts as Beneficiary in its sole discretion determines, and (ii) the remainder, if any, to the person or persons le~ally entitled thereto. 20. REMEDIES ~ATIVE. No right, power or ro~-~edy confen'ed upon or reserved to Bencficiary by this Deed of Trust is intended to be exclusive of any other rights, powers or remedies, but each such right, power and remedy shall be cumulative and concurrent and shall be in addition to any other right, power and remedy given hereunder or now or hereafter existing at law or in equity. GENERAL PROVISIONS 21. GOVERNING LAW. This Deed of Trust shall be interpreted under and governed by the laws of the State of California, except for those provisions relating to choice of law and those provisions preempted by federal law. 22. STATEMENT OF OBLIGATION. Lender may collect a fee not to exceed the maximum allowable under applicable law for furnishing a statement of obligations as provided in the California Civil Code. 23.-CONSENTS AND APPROVALS. Any consent or approval of Beneficiary required under this Deed of Trust shall not be unreasonably withheld. 24. TIME. Time is of the essence in this Deed of Trust. 25. NOTICES, DEMANDS AND COMMUNICATIONS. Formal notices, demands and communications between Trnstor and Beneficiary shall be sufficiently given and shall not be · deemed given unless dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered p=~o.n~ly, to the principal offices of Tmstor and Beneficiary as follows: BENEFICIARY: City of Cupertino 10300 Tone Avenue Cupertino, CA 95014 -- Atto: Dave Knapp, CitY Manager 144H21\119103.4 TRUSTOR: Cupertino Community Services, Inc. 10185 North Stelling Road Cupertino, California 95014 Executive Director: Saclyn Fabre 26. BINDING UPON SUCCESSORS. All provisions of this Deed of Trust shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors-in- interest, transferees, and assigns of Trustor, Trustee, and Beneficiary. 27. WAIVER. Any waiver by Beneficiary of any obligation of Trustor in this Deed of Trust must be in writing. No waiver will be implied from any delay or failure by Beneficiary to take action on any breach or default of Trustor Or to pursue any remedy allowed under the Deed of Trust or applicable law. Any extension of time granted to Trustor to perform any obligation under this Deed of Trnst shall not operate as a waiver or release Trnstor from any of its obligations under this Deed of Trust. Consent by Beneficiary to any act or omission by Trustor shall not be construed to be a consent to any other or subsequent act or omission or to waive the requirement for Beneficiary's' written consent to future waivers. 28. AMENDMENTS AND MODIFICATIONS. Any amendments or modifications to this Deed of Trust must be in writing, and shall be made only if mutually agreed upon by Beneficiary and Tmstor. 29. LOAN AGREEMENT CONTROLS. If there is any contradiction between this instrument and the Loan Agreement, the t=,,,,s of the Loan Agreement shall control, except that Trustor shall have no defensc or claim that this instrument does not establish a valid lien on the Property or the Security. 30. DEFINITIONS. Capitalized terms not otherwise defined in'this Deed of Trust shall have the same meaning as defined terms in the Loan Agreement. 31.- PROOFS OF CLAIM. In the case of any receivership, insolvency, bankruptcy, reorganization, arrangement, adjustment, recomposition or other proceedings affecting Trustor, its creditors or its property, Trustee, to the extent permitted by law, shall be entitled to file such proofs of claim and oth .er documents as may be necessary or advisable in order to have the claims of Beneficiary allowed in such proceedings and for any additional amount which may become due and payable by Tru~tor hereunder after such date. 32. SEVERABILITY. Every provision of this Deed of Trust is intended to be sev=x~ble. If any term or pwvision of this Deed of Trust is declared to be illegal, invalid, or unenforceable by a court of competent jurisdiction, the legality, validity, and enforceability of the remaining pwvisions shall not be affected. If the lien of this Deed of Trust is invalid or unenforceable as to any part of the debt, or if the lien is invalid or unenforceable as to any part of the Security, the unsecured or partially secured portion of the debt and all payments made on the debt (whether voluntary or under foreclosure or other enforcement action or procedure) shall be considered to 144\121\119103.4 -' have been first paid or applied to thc payment of that portion of the dcbt which is not sccured or partially secured by the lien of this Deed of Trust.. 33. SUBSTITUTION OF TRUSTEES. Beneficiary may from time to time appoint another trustee to act in the place and stead of Trustec or any successor. Upon such appointment and without conveyance, the successor trustee shall be vested with all title, powers, and duties conferred upon Trustee. 34. ACCEPTANCE BY TRUSTEE. Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made public record as provided by law. Except as otherwise provided by law, th.e Trustee is not obligated to notify any party hereto of pending sale under this Deed of Trust or of any action or proceeding in which Trustor, Beneficiary, or Trustee shall bc a party unless brought by Trustee. 35. NONRECOURSE OBLIGATION. The City's sole recourse in the event of an Event of Dcfanlt shall be to the Property, except in the.event of(i) fraud by thc Borrower, (ii) any material misrepresentation made by the Borrower to the City in connection with the Loan, (iii) misappropriation by the Trustor of any rents, security deposits, or insurance or condemnation proceeds or (iv) commission of bad faith waste by the Borrower. The foregoing provisions shall not prevent recourse to the collateral security for the Loan or constitute a waiver, release or discharge of or otherwise affect the obligation to pay, any indebtedness evidenced by the Note. IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the day and year first above written. Trustor: Cupertino Community Services, Inc., a California nonprofit public benefit corporation By: Its: TI~.q DOCUMENT MUST BE NOTARIZED FOR RECORDING 144H21H 19103.4 EXI-IIRIT A Legal Description of the Pwperty 144H21H 19103.4 PROMISSORY NOTE Cupertino, CalifOrnia $2,705,000 October ,2001 FOR VALUE RECEIVED, Cupertino Community Services, Inc., a California nonprofit public benefit corporation (the "Borrower"), whose address is 10185 North Stelling Road Cupertino, California 95014, hereby promises to pay to the order of the City of Cupertino, a municipal corporation (the "City"), whose address is 10300 Tone Avenue Cupertino, California 95014, in the original principal amount equal t~ Two Million Seven Hundred Five Thousand Dollars ($2,705,000), or so much thereof as may be advanced by the City to the Borrower. 1. BORROWER'S OBLIGATION. This pwmissory note (the "Note") evidences the Bet-tower's obligation to pay the City the principal amount of Two Million Seven Hundred Five Thousand Dollars ($2,705,000) for the funds loaned to the Borrower by the City to finance predevelopment, acquisition and conshaction activities (the "Loan"). 2. INTEREST. The Loan shall bear no interest. 3. AMOUNT AND TIME OF PAYMENT. The principal and all current and accrued interest of the Loan shall be due and payable on the earlier of(a) fiflT-five (55) years from the date of this Note or (b) an Event of Default by Borrower which has not been cured as provided for in the Loan Agreement of even date (the "Loan Agreement"). 4. DEFINITIONS. Unless otherwise defined herein, all initially capitalized t~-ms in this Note shall have the definition ascribed to such term in the Loan Agreement. The following t¢~ms are defined in the Loan Agreement and repeated here for convenience of reference: (a) "Surplus Cash" in a particular calendar year shall mean the amount by which Gross Revenue (as defined below) exceeds Annual Operating Expenses (as defined below). (b) "Gross Revenue" with respect to a particular calendar year shall mean all revenue, income, receipts, and other consideration actually received from operation and leasing of the Development. Gross Revenue shall not include tenants' security deposits, loan proceeds, insurance proceeds, capital contributions or similar advances. (c) "Annual Operating Expenses" with respect to a particular calendar year shall mean all expenses paid by following costs reasonably and actually incurred for operation and maintenance of the Development: property taxes and assessments imposed on the Development; debt service currently due on a non-optional basis (excluding debt sea-vice due tirom residual receipts or surplus cash of the Development) on loans associated with development of the Development; property management fees and reimbursements in the amount of Four Hundred Twenty Dollars ($420) per unit for the initial year and increased annually thereafter at no more 144H21H 19069.4 47 than the increase in the consumer price index for the San Francisco Bay Area Metropolitan Area; · premiums for property damage and liability insurance; utility services not paid for directly by tenants, including water, sewer, and trash collection; maintenance and repair; any annual license or certificate of occupancy fees required for operation of the Development; security services; advertising and marketing; cash deposited into reserves for capital replacemcnts of Development improvements in an amount not to exceed reserve requirements imposed by the lender of the permanent loan or as otherwise appwved by the City;, cash deposited into an operating reserve in an amount not to exceed the amount required in connection with the permanent loan, or any greater amount approved by the City; payment of any previously unpaid porti°n of a development fee; if such fee has been approved by the City, required extraordinary operating costs; and other ordinary and re~onable operating expenses not listed above. 5. PAYMENTS. Subject to provision~ of Section 2.7.(a) of the Loan Agreement, beginning on the second July 1, 2004, and continuing through each July 1st thereafter throughout the T=~m (each such July 1st is referred to as a "Payment Date"); annual payments shall be made to City by Borrower in an amount equal to fifty percent (50%) of Surplus Cash only to the extent that there exists Surplus Cash resulting from operation of the Development during the calendar year ending most nearly prior to the applicable Payment Date. Notwithstanding the foregoing, any principal and interest remaining outstanding at the expiration of the Term shall be forgiven by the City. 6. PLACE AND MANNER OF PAYMENT. AIl amounts due and payable under this Note are payable at the office of the City at the address set forth above, or at such other place as the City may designate to the Borrower in writing from time to time, in any coin or currency of the United States which on the respective dates of payment thereof shall be legal tender for the payment of public and private debts. 7. APPLICATION OF PAYMENTS. The payments by Borrower shall be applied to reduce the principal amount of the Loan. 8. DEFAULT A_ND ACCELERATION. This Note shall be secured bythe Deed of Trust. All covenants, conditions and agreements contained in the Deed of Trust and the Loan Agreement are hereby made a part of this Note. Borrower agrees that the unpaid balance of the then principal amount of this Note, shall, at the option of the City, become immediately due and payable upon any Event of Default as defined in the Loan Agreement which has not been cured pursuant to the Loan Agreement, including without limitation the failure of Borrower to make any payment when due. Upon any Event of Default, the City may exercise any other right or re~nedy permitted under the Loan Agreement. 9. NO OFFSET. Borrower hereby waives any rights of offset it now has or may hereafter have against the City, its successors and assigns, and agrees to make the payments' called for herein in accordance with the t~,us of this Note. 10. WAIVERS. Presentment, notice of dishonor, and protest are waived by all makers, sureties, guarantors, and endorsers of this Note. 144H21H lg069.4 ..... 1 I. CONSENTS AND APPROVALS. Any consent or approval of thc City required under this Note shall not be ~mressonably withheld.. 12. NOTICES. Except as may be otherwise specifically provided herein, any approval, notice, direction, consent request or other action by the City shall be in writing and may be communicated to the Borrower at the principal office of the Borrower set forth above, or at such other place or places as the Borrower shall designate in writing, from time to time, for the receipt of enmmunications from the City. 13. BINDING UPON SUCCESSORS. All provisions of this Note shall be binding upon and inure to thc benefit of thc hcirs, 8dmini.~l'ators, executors, successors-in-interest, transferees, and assigns of the Borrower and the City. 14. GOVERNING LAW. This Note shall be interpreted under and governed by the laws of the State of California, except for those pwvisions relating to choice of law and those provisions preempted by fed=r~l law. 15. SEVERABILITY. Every provision of this Note is intended to be severable. If any pwvision of this Note shall be held invalid, illegal, or unenforceable by a court of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired. -' 16. TIME. Time is of the essence in this Note. 17. ATTORNEYS' FEES AND COSTS. h the event any legal action is commenced to interpret or to enforce the terms of this Note, the prevailing party in any such action shall be entitled to recover all reasonable attorneys' fees and costs incurred in such action. 18. WAIVER. Any waiver by the City of any obligation in this Note must be in writing. No waiver shall be implied from any failure of the City to take, or any dclay or failure by the City to take action on any breach or default by the Borrower or to pursue any remedy allowed under this Note or applicable law. Any extension of time granted to the Borrower to perform any obligation under this Notc shall not operate as a waiver or release from any of its obligations under this Note. 19. AMENDMENTS AND MODIFICATIONS. Any amendments or modifications to this Note must be in wr/ting, and shall be made only if executed by both thc Borrower and the city. 20. NONRECOURSE. The City's sole recourse in the event of an Event of Default shall be to the Property, except in the event of (i) fraud by the Borrower, (ii) any material misrepresentation made by thc Borrower to the City in connection with the Loan, (iii) misappropriation by the Trustor of any rents, security deposits, or insurance or condei~-mation proceeds or (iv) commission of bad faith waste.by thc Borrower. The foregoing provisions shall --' not prevent recourse to the collateral security for the loan or constitute a waiver, release or discharge of or otherwise affect the obligation to pay, any indebtedness evidenced by this Note. 144\121~119068.4 21. LOAN AGREEMENT CONTROLS. In the event that any pwvisions of this Note and the Loan Agre=ment conflict, the tei,~is of the Loan Agreement shall control. 22. CAPITALIZED TERMS. All capitalized terms not defined herein shall have the meaning set forth in the Loan Agreement. BORROWER Cupertino Community Services, Inc., a California nonpwfit public benefit corporation . By. 144~121\119069.4 RECORDING REQUESTED BY AND WHEN RECORDED MATL TO: Cupertino National Bank 20230 Stevens Creek Blvd. Cupertino, CA 95014 Attention: Loan Center Manager (Space above for Recorder's Use) SUBORDINATION AGREEMENT APN No. NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN YOUR SECURITY INTEREST IN THE PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT This SUBORDINATION AGREEMENT ("Agreement"), dated as of October 1, 2001, executed by CUPERTINO COMMUNITY SERVICES, a California nonprofit public benefit corporation ("Owner") and the CITY OF CUPERTINO, a municipal corporation duly organized and existing under the laws of the State of California (the "City") for the benefit of the holder of the Bonds (as defined below), is entered into with reference to the following facts: A. Owner has executed a note dated as of October 1,2001 (the "Bond Financing Note") evidencing a loan (the "Loan") in the principal amount of $1,600,000 from the City made with the proceeds of the City of Cupertino Multifamily Housing Revenue Bonds (Heart of Cupertino Project) Series 200lA (the "Bonds"). The Bond Financing Note is secured by a Deed of Trust, Assignment of Rents and Fixture Filing dated as of October 1, 2001 (the "Bond Deed of Tmst")in favor of the City for the benefit of the holder of the Bonds and recorded in the Official Records of Santa Clara County, California as ln~i~ ament No, encumbering the real property more fully descril~l in Exhibit "A" attached hereto and made a part hereof (the "Property"). B. Owner has executed or will execute a note in the principal amount of $ (the "City Loan Note") in favor of the City which is secured by a deed of trust (the "City Deed of Trust") that is or will also encumber the Property. C. It is a condition precedent to the City making the Loan and the Bond holder purchasing the Bonds that the Bond Deed of Trust shall unconditionally be and rcnialn at all times a lien and charge on the Property prior and superior to the lien of the City Deed of Trust; and the City is willing that the City Deed of Trust shall, when recorded, comfimte liens and charges on the Property which are subordinate to the Bond Deed of Trust. -1- 9127/01 IN CONSIDERATION OF THE FOREGOING, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owner and the City hereby agree as follows: Subordination. The Bond Deed of Trust, and any renewals, replacements, modifications or extensions thereof, shall unconditionally be and remain at all times a lien or charge on the Property prior and superior to the lien of the City Deed of Trust. The City intentionally and unconditionally waives, relinquishes and subordinates the lien or charge of the City Deed of Trust in favor of the lien or charge on the Property of the Bond Deed of Trust and understands that in reliance upon, and in consideration of, this waiver, relinquishment and subordination, the Bonds are being purchased and specific loans and advances are being and will be made, and as part and parcel thereof, specific monetary and other obligations are being and will be entered into which would not be made or entered into but for said reliance on this waiver, relinquishment and subordination. 2. Disbursements. Owner and the City acknowledge and agree that in making any disbursements related to the Loan, neither the City nor any holder of the Bonds b~ any obligation or duty to, nor has the City or any holder of the Bonds represented that it will oversee or monitor the application or use of such proceeds by the persons or entities to whom such disbursements are made, and any application or use of such proceeds shall not defeat the subordination made in this Agreement, in whole or in part. 3. Notice and Right to Cure. Upon the occurrence of an event of default under the Bond Deed of Trust, and prior to exercising any red,aeries under the Bond Deed of Trust, the authorized representative of the holder of the Bonds ("Bond Holder Representative") shall give written notice of such event of default to the City. The City may, but shall not be obligated to, cure such event of default within 10 business days after its receipt of such notice. If the City does not cure the event of default in a timely manner, the Bond Holder Representative may exercise any rights or remedies available under the Bond Deed of Trust or at law. 4. Further Assurances. Owner and the City shall execute, acknowledge and deliver to each other and the holder of the Bonds all documents, and shall take all actions reasonably required by such other party fi'om time to time to confirm or effect the matters set forth herein, or otherwise to carry out the purposes of this Agre~,ment. 5. Attorneys' Fees. In the event that any litigation, reference or arbilration shall be commenced concerning this Agreement, the party prevailing in such proceeding shall be entitled to recover, in addition to such other relief as may be granted, its reasonable costs and expenses, including, without limitation, reasonable attorneys' fees and costs (including the allocated costs for in-house counsel), whether or not taxable, as awarded by a court of competent jurisdiction, referee or arbitrator. 5. Miscellaneous. This Agreement shall bind, and shall inure to the benefit of, the successors and assigns of the parties. This document may be executed in counterparts with the same force and effect as if thc parties had executed one instrument, and each such counterpart shall' -2- constitute an original hereof. This Agreement shall be governed by the laws of the State of California. This Agreement integrates al] the of the t~m,s and conditions of the parties' agreement regarding the matters contained herein. This Agreement supercedes and cancels all oral negotiations and prior and other writings with respect to the matters contained herein. This Agreement may not be modified or amended except in a written agreement signed by the City and Owner or their respective successors in interest, and consented to by the holder of the Bonds IN WITNESS WHEREOF, Owner and the City have caused this Agreement to be duly executed as of the date first written above. "Owner" CUPERTINO COMMUNITY SERVICES, a California nonprofit public benefit corporation By: Name: Its: "City" CITY OF CUPERTINO By: Name: Its: -3- State of California ) )SS. County of ) On before me, , Notary Public, personally appeared , 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 capacity(les), and that by his/her/their signature(s) on the instnunent the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Notary (Seal) State of California ) )SS. County of ) On before me, , Notary Public, personally appeared , 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 eapacity(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 my hand and official seal. Notary (Seal) .... EXHIBIT A Description of the Property .~ City Hall __. 10300 Torte Avenue Cupertino, CA 95014-3255 CITY OF Telephone: {408) 777-3220 CUPEI~INO FAX: (408, 777-3366 ADMINISTRATIVE SERVICES DEPARTMENT SUMMARY Agenda Item No. J ~ Meeting Date: October 1, 2001 SUBJECT AND ISSUE Call for a special municipal election for the purpose of submitting a measure before the qualified voters to extend the current utility users tax from 2015 to 2030. BACKGROUND In 1990, the city asked the voters to pass a utility users tax to help defray the costs of debt issuance for the acquisition of Blackberry Farm and Creekside Park. The voters approved a tax of 2.4% on electric, gas and phone usage through 2015. In conjunction with our budget this year, City Council authorized the refinancing and extension of our existing debt from 2015 to 2030. To continue to provide a revenue stream to fund these debt payments, staffwas directed to extend the utility tax sunset date to conform to these payment dates· RECOMMENDATION: Approve the ordinance extending the Utility Users Excise Tax for 15 years and ordering the submission of a proposition to the Electorate of the City. · David-Knapp Director of Administrative Services City Manager ORDINANCE NO. 1888 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO EXTENDING THE UTILITY USERS EXCISE TAX FOR A PERIOD OF FIFTEEN YEARS AND ORDERING THE SUBMISSION OF A PROPOSITION THEREOF TO THE ELECTORATE OF THE CITY Sections: 3.34.010 Definitions 3.34.020 Exemptions 3.34.030 Telephone Users Tax 3.34.040 Electricity Users Tax 3.34.050 Gas Users Tax 3.34.060 Services Users Receiving Gas or Electricity Directly 3.34.070 Penalties 3.34.080 Actions to Collect 3.34.090 Duty to Collect - Procedures 3.34.100 Additional Power and Duties of Tax Administrator 3.34.110 Assessment - Administrative Remedy 3.34.120 Records 3.34.130 Refunds 3.34.140 Rules of Construction 3.34.150 Benefit to All Persons 3.34.160 Duration 3.34.170 Disposition of Proceeds 3.34.180 General Fund lease 3.34.190 Power in Addition 3.34.200 Ordinance Controlling 3.34.210 Liberal Construction 3.34.220 Defect or Omission, Validity of Proceedings or Taxes 3.34.230 Limitation of Actions 3.34.240 Severability THE CITY COUNCIL OF THE CITY OF CUPERTINO DOES ORDAIN AS FOLLOWS: The purpose of this Ordinance is to impose a utility users excise tax as a revenue measure necessary to pay the usual and current expenses of conducting the municipal government of the City, the proceeds of which shall be paid into the general fund of the city. This Ordinance shall be known and may be cited as the "Utility Users Excise Tax Ordinance". 3.34.010 Definitions. Except where the context otherwise requires, the definitions set forth in this section govern the construction of this Ordinance. Ordinance No. 1888 Page 2 "City" means the City of Cupertino. "Facilities" means the municipal facilities generally including Blackberry Farm, other open space land within the City and the public recreational facilities consistent with the preservation and public use of open space. Facilities shall be deemed available and susceptible of use within the meaning of the teLm "availability and privilege of use", as used in this Ordinance, when such facilities exist and are available for use during any portion of the fiscal year next preceding the levy of the Tax. "Gas" includes natural gas and any other gas used for light heat and power. "Month" means a calendar month. "Non-utility surlier" means a Service Supplier, other than (a) a gas corporation or (b) an electrical corporation serving within the City, which generates electrical energy in capacities of at least 100 kilowatts monthly for sale to others. "Persons" means any domestic or foreign corporation, firm, association syndicate, joint stock company, partnership of any kind, joint venture, club, Massachusetts business or common law trust, society, or individual. "Tax" means the utility useLs excise Tax proposed to be imposed by this Ordinance, more particularly described in Sections 3.34.030, 3.34.040 and 3.34.050 of this Ordinance. "Tax Administrator" means the City Treasurer. "Telephone Comoration," "electrical corI)oration," and "gas comoration," have the same meanings as defined in sections 234, 218, 222 and 215.5, respectively, of the California Public Utilities Code (as said sections existed on June 1, 1989), except that "electrical corporation" shall also be construed to include any municipality or Person engaged in the selling or supplying of elec~cal power to a Service User. "Service Supplier" means any entity required to collect or self-impose and remit a Tax as imposed by this Ordinance. "Service User" means a Person required to pay a Tax imposed by this Ordinance. 3.34.020 Exeml~tions. (a) Public bodies, religious organizations and other Persons exempt under state or federal law shall be exempt from the Tax. Residential service users of 65 years or older shall be exempt fi'om Tax payments under this Ordinance upon application to the Tax Administrator, in such manner and with such proof or qualification as the Tax Administrator shall det~miine. Ordinance No. 1888 Page 3 (b) The City Council may, by order or resolution, establish one or more classes of Persons or,one or more classes of utility service otherwise subject to payment of a Tax imposed by this Ordinance and provide that such classes of Persons or service shall be exempt, in whole or in part, from such Tax. (c) The Tax administrator shall prepare a list of the Persons exempt from the provisions of this Ordinance by virtue of this section and furuish a copy thereof to each Service Supplier. 3.34.030 Telel~hone Users Tax. (a) There is hereby imposed a Tax (herein called the "Telephone Users Tax") on the amounts paid for any interstate, interstate and/or international telephone communication services by every Person in the City other than a Telephone Corporation, using such services. The Tax imposed by this section shall be at the rate of two and forty hundredths percent (2.04%) of the charges made for such services and shall be paid by the persons paying for such services. (b) A used in this section, the term "charges" shall not include charges for services paid for by inserting coins in coin-operated telephones except where SUch coin-operated service is furnished for a guaranteed amount, in which event the amounts paid under such guarantee plus any fixed monthly or other periodic charge shall be included in the base for computing the amount of Tax due; nor shall the terms "charges" include charges for any type of service or equipment furnished by a service supplied subject to public utility regulations during any period in which the same or similar services or equipment are also available for sale or lease from Persons other than a Service Supplier subject to public utility regulation; nor shall the words "telephone communication services" include land mobile services or maritime mobile services as defined in Section 2.1 of Title 47 of the Code of Federal Regulations as said section existed on January 1, 1970. The t~.. "telephone communication services" refers to that service which provides access to a telephone system and the privilege of telephone quality communication with substantially all Persons having telephone stations which are part of such telephone system. The Telephone Users Tax is intended to, and does, apply to charges billed to a telephone account having a sims in the City, irrespective of whether a particular communication service originates and/or terminates within the City. (c) The Telephone Users Tax shall be collected from the Service User by the last day of the following month; or, at the option of the Person required to collect and remit the Tax, an estimated amount of Tax collected, measured by the Tax bill in the previous month, shall be remitted to the Tax Administrator on or before the last day of each month. (d) Notwithstanding the provisions of subsection (a), the Telephone Users Tax shall not be imposed upon any Person for using intrastate telephone communication services to the extent that the amounts paid for such services are exempt from or not subject to the Tax imposed under Part 20 (commencing with section 41001) of Division 2 of the California Revenue and Taxation Code, or the Tax imposed under section 4251 of the Internal Revenue Code. Ordinance No. 1888 Page 4 3.34.040. El~tricity Users Tax. (a) There is hereby imposed a Tax (herein called the "Electricity Users Tax") upon every Person in the city other than an Electrical Corporation using electrical energy in the City. The Tax imposed by this section shall be at the rate of two and forty hundredths percent (2.40%) of the charges made for such energy by an electrical corporation franchised to service the city and shall be billed to and paid by the Person using the energy. If the charges made for such energy by the fi'anchised electrical corporation are negotiated either (1) on the basis that the Service User has provided its own transmission voltage reduction facilities or (2) as individualized negotiated co-generation avoidance Uat~smission voltage rates, and the resulting negotiated rates are not available to the City, such negotiated rates shall be made available to the City by the Service User. The Tax applicable to electrical energy provided by a non-utility supplier shall be based on the above Tax rate and the charges made for such electrical energy if there is an ~ums-length transaction for the sale of the electrical energy between the non-utility supplier and the Service User. If there is not an arms-length sale from a non-utility supplier, the Tax shall be determined by applying the Tax rate to the equivalent charges the Service User would have incurred if the energy used had been provided by the electrical corporation fi~anchised by the City. Rate schedules for this purpose shall be available from the City. Non-utility suppliers shall install, maintain and use an appropriate utility-type metering system which will enable compliance with this section. If the electrical energy is generated by the Service user for its own use, the Service User shall provide the City with the actual monthly cost of generating the electrical energy so used and the Electricity Users Tax shall be based on the above Tax rate applied to said actual cost. Cost figures supplied by the Service User shall be subject to periodic audit by the City and appropriate adjustment pursuant thereto. "Charges," as used in this section, shall include charges made for: (1) metered energy and (2) minimum charges for service, including customer charges, service charges, demand charges and all other annual and monthly chargcs (other than standby charges), fuel or other cost adjustments, authorized by the California Public Utilities Commission or thc Federal Energy Regulatory Commission. Co) As used in this section, the term "using electrical energy" shall not be construed to mean the storage of such energy by a Person in a battery owned or possessed by such Person for use in an automobile or other machinery device apart from the premises upon which the energy was received, provided, however, that the term shall include the receiving of such energy for the propose of using it in the charging of batteries; nor shall the term include electricity used and consumed by an electric utility supplier in the conduct of its business; nor shall the term include the mere receiving of such energy by an electric public utility or governmental agency at Ordinance No. 1888 .Page 5 a point within thc City for resale; nor shall the term include thc nsc of such energy in thc production or distribution of water by a public utility or a governmental agency. (c) The Electricity Users Tax shall be collected from the Service User by thc Service Supplier or non-utility supplier. The Electricity Users Tax on use supplied by self-generation or co-generation or from a non-utility supplier not subject to thc jurisdiction of this Ordinance, shall be collected and remitted to the Tax Administrator in the manner set forth in Section 3.34.060. The amount of Tax collected by a Service Supplier or a non-utility supplier in one month shall bc remitted by United States mail to the Tax Administrator, postmarked on or bcfore the last day of the following month; or, at the option of the Person required to collect and remit thc Tax, an cstimated amount or Tax mcasured by the Tax billed in the previous month, shall be remitted by United States mail, to the Tax Administrator, poshuarked on or before the last day of each month. The amount of the Tax remitted may bc cstimatcd by a formula based upon the paymcnt pattcm of thc supplicr's cnstomers. (d) Notwithstanding the provisions of section 3.34.090(a), if the amount paid by a Service user is less than the full amount of the energy charge and Tax which has accrued for the billing period, such amount and any subsequent payments by a Service User shall be applied to the energy charge first until such charge has been fully satisfied. Any r¢iiiaining balance shall be applied to Taxes due. 3.34.050. Gas Users Tax. (a) There is hereby imposed a Tax (herein called the "Gas Users Tax") upon every Person in the city other than a gas corporation or electrical corporation, using, in the City, gas which is delivered through mains or pipes or by motor vehicle or by rail. The Gas Users Tax shall be at the rate of two and forty hundredths percent (2.40%) of the charges made for the gas and shall be billed to and paid by the Person using the gas. If the charges made for such gas.by the franchised gas corporation are negotiated and the resulting negotiated rates are not available to the City, such negotiated rates shall be made available to the City by the Service User. The Tax applicable to gas or gas transportation provided by non-utility suppliers shall be based on the charges made for such gas or gas transportation if that is derived from an a~us-length transaction between a non-utility supplier and the Service User. If there is not au arms-length sale, the Tax shall be determined by applying the Tax rate to the equivalent charges the Service User would have incurred if the gas or gas transportation had been provided by the gas corporation franchised by the City. Rate schedules for this purpose shall be available from the City. "Charges" as nsed in this section shall include: (1) those billed for gas which is delivered through mains or pipes or by motor vehicle or by rail; (2) gas transportations charges, and (3) demand charges, service charges, customer charges, minimum charges, annual and monthly charges and any other charges (other than Ordinance No. 1888 Page 6 '- standby chargcs) authorized by thc California Public Utilities Commission or thc Federal Bnergy Regulatory Commission. (b) The Gas Users Tax is not applicable to: (1) charges made for gas which is to be resold and delivered through mains and pipes or by motor vehicle or by rail; (2) charges made for gas sold by a public utility, non-utility supplier or governmental agency for use in the generation of electrical energy or the production of distribution of water; (3) charges made by a gas public utility or gas used and consumed in the course of its public utility business; (4) charges made for gas used in the propulsion of a motor vehicle, as authorized in the Vehicle Code of the State of California; (c) The Gas Users Tax shall be collected from the Service User by the Person selling or transporting the gas. In the case of purchase of gas from a non-utility supplier, or a gas corporation not franchised by the City, the Service User will be responsible for reffaitting the applicable Gas Users Tax directly to the Tax Administrator. A Person selling only transportation services to a user for delivery of gas through mains or pipes or by motor vehicle or by rail shall collect the Tax from the Service User based on the transportation charges. Except as provided above, the person selling or transporting the gas shall, on or before the 20t~ of each calendar month, commencing on the 20th day of the calendar month after the effective day of this Ordinance, make a return to the Tax Administrator stating the amount of Taxes billed during the preceding calendar month. At the time such returns are filed, the Person selling or transporting the gas shall remit · -- Tax payments to the Tax Administrator in accordance with schedules established or approved by the Tax Administrator. 3.34.60. Service Users Receiving Gas or Electricity Directly. (a) Notwithstanding any other provision of this Ordinance, a Service.User receiving gas or electric energy directly from a non-utility supplier not under the jurisdiction of this Ordinance, or using electricity generated by the Service User for its own use, or otherwise not having the full Tax due on the use of gas or electric energy in the city directly billed and collected by the Service supplier, shall report said fact to the Tax Administrator within thirty days of said use and shall directly remit to the City the amount of Tax due. (b) The Tax Administrator may require from said Service User the filed Tax returns or other satisfactory evidence documenting the sale price and quantity of gas or electric energy used. 3.34.70. Penalties. (a) Taxes collected from a Service User which are not remitted to the Tax Administrator on or before the due dates provided in this ordinance are delinquent. Should the due date occur on a weekend or legal holiday, the return may be poshuarked on the first regular working day following a Saturday/Sunday, or legal holiday. Ordinance No. 1888 Page 7 Co) Penalties for delinquency in remittance of any Tax collected or any deficiency determination determined by the Tax Administrator, shall attach and be paid by the Person required to collect and remit at the rate of fifteen percent (15%) of the total Tax collected or imposed herein. (c) The Tax Administrator shall have power to impose additional penalties upon any Person required to collect and remit Taxes under the provisions of this Ordinance for fraud in reporting or remitting at the annual rate of fifteen percent (15%) of the amount of the Tax collected or as recomputed by the Tax Administrator. (d) Every penalty imposed under the provisions of this Ordinance shall become a part of thc Tax required to be remitted. 3.34.080 Action to collect. Any tax required to be paid by a Service User under the provisions of this Ordinance shall be deemed a debt owed by a Service User to the City. Any such Tax collected from a Service User which has willfully been withheld from the Tax Administrator shall be deemed a debt owed to the City by the Person required to collect and remit. Any person owing money to the City under the provisions of this Ordinance shall be liable to an action brought in the name of the City for the recovery of such amount. 3.34.090 Duty to Collect - Procedures. The duty to collect and remit the Taxes imposed by this Ordinance shall be performed as follows: (a) Notwithstanding any other provision of this Ordinance, the Tax shall be collected insofar as practicable at the same time as and along with the charges made in accordance with the regular billing practices of the Service Supplier. Where the amount paid by a Service User to a Service Supplier is less than the full amount of the utility charge and Tax which has accrued for the billing period, such amount and any subsequent payments by a Service User shall be applied to the utility charge first until such charge has been fully satisfied. Any reaiaining balance shall be applied to Taxes due. In those cases where a Service User has notified the Service Supplier of this refusal to pay the Tax imposed on said utility charges Section 3.34.100 (c) will apply. Co) The duty to collect the Tax from a Service User shall commence with the beginning of the fu'st full regular billing period applicable to the Service User where all charges normally included in such regular billing are subject to the provisions of this Ordinance. Where a Person receives more than one billing, one or more being for different periods than another, the duty to collect shall arise separately for each billing. 3.34.100. Additional Power and duties of Tax Administrator. (a) The Tax Administrator shall have the power and duty, and is hereby directed to enforce each and all of the provisions of this Ordinance. Ordinance No. 1888 Page 8 '- CO) Thc Tax Administrator shall have thc power to adopt rules and regulations.not inconsistent with provisions of this Ordinance for thc purpose of carrying out and enforcing the payment, collection and rernittan¢c of thc Taxes herein imposed. A copy of such rules and regulations shall be on file in the Tax Administrator's office. (c) The Tax Administrator may make administrative agreements to vary the strict requirements of this Ordinance so that the collection of any Tax imposed hereby may be made in conformance with the billing procedures of a particular Service Supplier so long as said agreements result in collection of the Tax in conformance with the general purpose and scope of this Ordinance. A copy of each such agreement shall be on file in the Tax Administrator's office. (d) The Tax Administrator shall determine the eligibility of any Person who asserts a right to exemption from the Tax imposed by this Ordinance. The Tax Administrator shall provide the Service Supplier with the name of any Person who the Tax Administrator dete~mlnes is exempt t~om the Tax imposed hereby, together with the address and account number to which service is supplied to any such exempt Person. The Tax Administrator shall notify the Service Supplier of termination of any Person's right to exemption hereunder, or the change of any address to which service is supplied to any exempt Person. 3.34.110. Assessment - Administrative Remedy. (a) The Tax Administrator may make an assessment for Taxes not remitted by a Person required to remit. Co) Whenever the Tax Administrator detem~ines that a Service User has deliberately withheld the amount of the Tax owed by him from the amounts remitted to a Person required to collect the Tax, or that a Service User has refused to pay the amount of Tax to such Person, or whenever the Tax Administrator deems it in the best interest of the City, such Person may be relieved of the obligation to collect Taxes due under this Ordinance from certain named Service Users for specified billing periods. (c) The Service Supplier shall provide the City with amounts refunded to be paid and/or unpaid along with the name and addresses of the Service Users neglecting to pay the Tax imposed under provisions of this Ordinance. Whenever the Service User has failed to pay the amount of Tax for a period of two or more billing periods, the Service Supplier shall be relieved of the obligatiofi to collect Taxes due. (d) The Tax Administrator shall notify the Service User that the Tax Administrator has assumed responsibility to collect the Tax due for the stated periods and demand payment of such Taxes. The notice shall be served on the Service User by handing it'to · -. such user personally or by deposit of the notice in the United States mail, postage prepared thereon, addressed to the Service User at the address to which billing was made Ordinance No. 1888 Page 9 by the Person required to collect the Tax; or, should the Service User's address change, to the last known address. Ifa Service user fails to remit the Tax to the Tax Administrator within fifteen (15) days from the date of the receipt of the notice upon him, which shall be the date of mailing if service is not accomplished in Person, a penalty of twenty-five pcrccnt (25%) of the amount of the Tax set forth in the notice shall be imposed. The penalty shall become part of the Tax herein required to be paid. 3.34.120. Records. It shall be the duty of every Person required to pay or collect and remit to the city any Tax imposed by this ordinance to keep and preserve, for a period of three (3) years, all records as may be necessary to determine the amount of such Tax for which such Person may have been liable for the re-~ittance to the Tax Administrator, which records the Tax Adminislrator shall the right to inspect at all reasonable times. 3.34.130. Refunds. (a) Whenever the amount of any Tax has been overpaid or paid more than once or has been erroneously or illegally collected or received by the Tax Administrator under this Ordinance, it may be refunded as provided in this section. (b) Notwithstanding thc provisions of subsection (a) of this section, a Service Supplier may claim a refund, or take as credit against Taxcs remitted the amount overpaid, paid more than oncc, or erroneously or illegally collected or received when it is established that the Service User fi'om whom the Tax has been collected did not owe the Tax; provided, however, that neither a refund nor a credit shall be allowed unless the amount of the Tax so collccted has either been refunded to the Service User or crcdited to charges subsequently payable by the Service User to the Person required to collect and remit. A Servicc Supplier that has collected any amount of Tax in excess of the amount of Tax imposed by this Ordinance and actually due from a Service User, may refund such amount to the Service user and claim credit for such overpayment against the amount of Tax which is due upon any other monthly returns provided such credit is claimed in a return dated no later than three (3) years from the date of overpayment. (c) No refund shall be paid under the provisions of this section unless the claimant has established the claimant's right thereto by written records showing entitlement thereto. (d) Notwithstanding other provisions of this section, whenever a Service Supplier, pursuant to an order of the California Public Utilities Commission or a court of competent jurisdiction, makcs a refund to Scrvice Uscrs of charges for past utility services, the Taxes paid pursuant to this ordinance on the amount of such refunded charges shall also bc refundcd to Service Users, and the Service Supplier shall be entitled to claim a credit for such refunded Taxes against thc amount of Tax which is due upon the next monthly returns. In the event this Ordinance is repealed, the amounts of any refundable taxes will be paid by the city. Ordinance No. 1888 Page 10 -' (c) A Scrvicc Supplier may refund thc Taxes collcctcd to thc Servicc Uscr in accordance with this section or by thc Scrvicc Supplicr's customary practice. (f) A credit or refund of Tax due shall be granted to any Service User from whom the Tax is collected to cover the administrative and clerical expense of establishing and auditing the cost of generating electric energy for its own use pursuant to the third paragraph of Section 3.34.040(a). Any such administrative and clerical expense is also subject to audit and appropriate adjustment pursuant thereto. 3.34.140 Rules of Construction. Words of the masculine gender shall be deemed and construed to include correlative words of the feminine and neuter genders. Unless the context shall otherwise indicate, words importing the singular number shall include the plural number and vice versa. 3.34.150 Benefit to All Person. The City council has found and determined and hereby declares that all Persons using utility services in the city enjoy the privilege of using and benefit from the providing by the City, of municipal services and facilities. 3.34.160 Duration. The Tax shall be levied until November 6, 2030 at which time, the tax levied hereinunder, unless further extended, shall cease. 3.34.170 Disvosition of Proceeds. This Ordinance is hereby declared to be a · -- revenue measure for general government purposes; thc proceeds of the Tax shall be paid into the general fund. 3.34.180 Power in Addition. The powers conferred by this Ordinance are in addition to, and the limitations imposed by this Ordinance do not affect, thc powers conferred by any other law or Ordinance. 3.34.190 Ordinance Controlling. If this Ordinance is inconsistent with any other law, this Ordinance is controlling. 3.34.200 Liberal Construction. This Ordinance shall be liberally construed to promote its objects. 3.34.210 Defect or Omission, Validity of Proceedings or Taxes. If the jurisdiction of the Council to order the proposed act is not affected, thc defect or omission by any officer in proceedings under this Ordinance does not invalidate thc procccdings or taxes levied under this Ordinance. 3.34.220 Limitation of Actions. The validity of this Ordinance or of any tax levied pursuant to this Ordinance shall not be contested in any action or proceeding or defense unless such action or proceeding or defense shall have been brought or raised within ninety (90) days from the date of the approval of this Ordinance and the levy of said tax by the voters of thc City on March 6, 2002. Unless an action or proceeding is commenced or such defense raised within said period, this Ordinance and any tax levied Ordinance No. 1888 Page 11 pursuant to this Ordinance shall be held valid and in every respect legal and incontestable. 3.34.230 Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Ordinance or any part hereof is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portions of this Ordinance or any part thereof. The Council declares that it would have passed each section, subsection, subdivisions, paragraph, sentence, clause or paragraph thereof, irrespective of the fact that any one or more sections, subsections, subdivision, paragraphs, sentences, clauses or phrases is declared unconstitutional. Article 2. Elections Call of Election. A special municipal election is hereby called and ordered to be held in the City on March 5, 2002 at which election there shall be submitted to qualified voters of the City the proposition set forth below: Proposition. The proposition shall appear on the ballot for said special municipal election in the following form: "MEASURE : Utility Tax Initiative. Residents currently pay a 2.4% tax on utility use, specifically electric, gas and telephone. Shall the City of Cupertino extend the existing utility tax which will otherwise terminate in 2015 for an additional 15 years to 2030, for general city services and programs.'? The Council does hereby submit to the qualified voters of the City, at said special municipal election, this Ordinance and the proposition set forth above. The City Clerk is hereby directed to certify to the adoption of this resolution, to transmit a copy hereof to the Board of Supervisors of the Santa Clara County, and to file a certified copy with the Registrar of Voters of the county. The Board of Supervisors of Santa Clara County is hereby .requested to order the consolidation of the special election with the gubernatorial primary election to be held on Tuesday, March 5, 2001, and to authorize the Registrar of Voters to conduct the election and canvass the returns. The election shall be held and conducted, closed, ballots counted and returned, returns canvassed, and results declared, and all other proceedings incidental to and connected with the election shall be regulated and done in accordance with the provisions of law regulating the gubernatorial primary election and specified herein. Said Registrar of Voters shall certify the results of the canvass of the returns of said special election to the Council, which shall thereaRer declare the results thereof. The Cupertino City Council hereby accepts the usual and customary terms and conditions of the pe~£ormance of said election services by the Registrar of Voters; and the City Council further agrees to make payments as may be set f~rth in a billing to the City of Ordinance No. 1888 Page 12 Cupertino from the Registrar of Voters prescribing the amount due for costs incurred from the rendering of election services, all as provided by the provisions of Section 10416 of the Elections Code of the State of California. Arguments in favor or against the proposed measures shall be filed with the City Clerk by Thursday, November 1, at 5:00 p.m. Rebuttals to arguments in favor or against thc proposed measures shall be filed with the City Clerk by Thursday, November 8, at $:00 p.m. The City Attorney shall prepare an impartial analysis of the measure not to exceed $00 words in length and which is to be filed with the City Clerk no later than Thursday, November 8, 2001. The City Clerk shall publish a notice of election and synopsis of the measure one time in a newspaper of general circulation. The polls shall be opened at 7:00 a.m. and closed at 8:00 p.m. INTRODUCED at a regular meeting of the City Council of the City of Cupertino this 1st day of October, 2001 and ENACTED at a regular meeting of the City of Cupertino this day of ,2001 by the following vote: Vote Council Members AYES: NOES: .. ABSENT: ABSTAIN: ATTEST: APPROVED: City Clerk Mayor, City of Cupertino - ORDINANCE NO. 1886 AN ORDINANCE OF THE CITY OF CUPERTINO, AMENDING TITLE 1, 5, 8, 10, 11, 13, 14, 16, 17 AND 19 OF THE CUPERTINO MUNICIPAL CODE FOR THE PURPOSE OF CONFORMING THE PROVISIONS OF THE CODE TO THE REQUIREMENTS OF STATE AND FEDERAL LAW, CONFORMING THE PROVISIONS OF THE CODE TO BE CONSISTENT WITH PRESENT CITY PRACTICES, ELIMINATING REDUNDANT AND OBSOLETE PROVISIONS, CLARIFYING OLD PROVISIONS WITH NEW LANGUAGE, AND CONSOLIDATING AND STREAMLINING VARIOUS PROVISIONS. THE CITY COUNCIL OF THE CITY OF.CUPERTINO DOES HEREBY ORDAIN that the following sections of the Cupertino Municipal Code shall be amended to read as follows: Section 1.09.080 is hereby repealed. Section 1.12.010 is hereby amended to read as follows: 1.12.010 Violation of code. A. It is unlawful for any person to perform any act that is prohibited, made or declared to be unlawful or an offense by the code, or to violate any provision or fail to comply with any of the requirements of this code. A violation of any provision or failing to comply with any of the mandatory requirements of the code shall constitute a misdemeanor, except where the violation is specifically declared to be an infraction. B. Notwithstanding the above, any violation constituting a misdemeanor may, in the discretion of the City Attorney, be charged and prosecuted as an infraction. C. When a violation of a provision of this code which otherwise constitutes an infraction continues to occur and the violator has been charged with a violation of the same provision as an infraction on at least four separate occasions and within one year has forfeited bail on each such occasion, in that event, the City Attorney, in his or her discretion, may charge a violation of any such provision as a misdemeanor. D. Unless otherwise specified by this code, an infraction is punishable by: 1. A fine not to exceed one hundred dollars for a first violation; 2. A fine not to exceed two hundred dollars for a second violation of the same chapter of this code within one year; and CMC revisions - September 2001 Page 1 3. A frae not to exceed five hundred dollars for a third violation of the same chapter of this code within one year. E. Unless otherwise specified by this code, a misdemeanor is punishable by a fine not to exceed one thousand dollars, imprisonment for a term not exceeding six months, or by both such fine and imprisonment. Section 5.04.280B is hereby amended to read as follows: B. In addition, each such person shall pay a tax as follows: Square Feet Rate per Square Foot 0-5,000 .0200 5,001-25,000 .0175 25,001-75,000 .0150 75,001-100,000 .0125 100,001-150,000 .0100 150,001 and above .0025 This amoum shall increase annually from 1992 based on the indexing formula in section 5.04.460 of this code. The final sentence of Sections 5.04.290, 5.04.300, 5.04.310, 5.04.320, 5.04.330, 5.04.340, 5.04.350, 5.04.360, 5.04.370, 5.04.380, 5.04.390, 5.04.400, 5.04.410, 5.04.420, 5.04.430, 5.04. ~.0 and 5.04.450 reading aCommencing with enactment of the ordinance codified in this chapter, and for the period of one year, the tax rate will be fifty percent of the established · rate" is hereby repealed and replaced with the following: This amoum shall increase annually from 1992 based on the indexing formula in section 5.04.460 of this code. Section 5.32.160 is hereby repealed. There is hereby added to the Municipal Code of Cupertino section 5.32.360 which reads as follows: 5.32.360 Pennlty Any person who violates any provision of this chapter shall be guilty of an infraction and, upon conviction thereof, shall be punished as provided in Chapter 1.12. CMC revisions = September 2001 Page 2 Section 8.01.030 is hereby amended to read as follows: 8.01.030 Animals running at large. No person owning or having control of any animal shall permit such animal to stray or run at large upon any public street or other public place, or common area of any planned developmem, cluster, townhouse or condominium project, or upon any private property without the consent of the owner or person in control thereof. There is hereby added to the Municipal Code of Cupertino section 8.01.170 which reads as follows: 8.01.170 Penalty Except where otherwise specified, any person who violates any of the provisions of this chapter shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in Chapter 1.12. Section 8.03.010 is hereby amended to read as follows: - 8.03.010 Restraint of dogs. The owner or person with the right to control any dog shall keep such dog under his or her own physical restraint by means of a leash or shall keep such dog confined behind a fence not less than six feet high except for any of the following: A. Guide dogs for the blind or deaf while performing their duties; B. Dogs participating in field or obedience trials or eonfo, u~ation exhibitions; C. Dogs assisting their owner/handler in legal hunting activities or in the herding of livestock; D. Dogs assisting a security guard or assisting a peace officer engaged in law enforcement activities; E. Dogs assisting in search and rescue activities; F. Dogs being trained for any of the above-described purposes on private property with the permission of the landowner, so long as these dogs are under the direct control of the trainer/handler. CMC revisiom - Septrmber 2001 Page ~ There is hereby added to the Municipal Code of Cupertino section 8.03.035 which reads as follows: 8.03.035 Keeping of dangerous and potentially dangerous dogs. A. The owner or person with the right to control any dangerous or potemially dangerous dog shall: 1. Keep the dog under his or her own physical restraim and control by means of a leash not to exceed six feet in length. In addition, a dangerous.dog must be mu~-~-led; 2. Post a sign advising of the presence of a dangerous or potemially dangerous dog at the entrance to every place where any such dog is confined. The sign shall be capable of being understood by a child with normal reading skills of a second grader. B. In addition to Subsection A of this section the owner or person with the right to control a dangerous dog shall: 1. Maintain for the dog an enclosed and locked pen or kennel having secured sides and a secured top attached to the sides, and having a secure bottom or floor attached to the sides, or with sides embedded not less than two feet into the ground, behind a fence not less than six feet high, except where the dangerous dog is kept in an apartment or condominium; 2. Ensure that when the dog is in a house, aparm~ent, building or similar structure, that the windows and doors of same are secured to prevent the dog from exiting without the assistance of the owner or person with the right to control such dog. Section 8.03.030 is hereby amended to read as follows:' Every owner of a dog or a cat over four months of age shall cause such dog or cat to be vaccinated with an anti-rabies vaccine approved by the State Depax/atlent of Public Health. Revaccination shall be made at such intervals of time as may be prescribed by the State Department of Public Health. Compliance with the provision of this section shall be a condition to the issuance or renewal of dog and cat licenses. Section 8.03.040D is hereby repealed. There is hereby added to the Municipal Code of Cupertino section 8.03.130 which reads as follows: 8,03.130 Penalty Except where otherwise specified, any person who violates any of the provisions of this chapter shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in Chapter 1.12 CMC revisions - September 2001 Page 4 'There is hereby added to the Municipal Code of Cupertino section 8.05.100 which reads as follows: 8.05.100 Penalty Except where otherwise specified, any person who violates any of the provisions of this chapter shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in Chapter 1.12 There is hereby added to the Municipal Code of Cupertino section 8.06.040 which reads as follows: 8.06.040 Penalty Except where otherwise specified, any person who violates any of the provisions of this chapter shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in Chapter 1.12 Section 8.07.100 is hereby amended to read as follows: 8.07.100 Penalty Except where otherwise specified, any person who violates any of the provisions of this chapter shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in Chapter 1.12 There is hereby added to the Municipal Code of Cupertino section 8.09.040 which reads as follows: 8.09.040 Penalty Except where otherwise specified, any person who violates any of the provisions of this chapter shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in Chapter 1.12. Notwithstanding the above, the City Attorney may commence a civil action pursuant to California Health & Safety Code section 122045 et seq. as an alternative to, or in conjunction with the aforementioned penalty. CMC revisiom - September 2001 Page 5 Section 8.11.140 is hereby amended to read as follows: 8.11.140 Penalty Except where otherwise specified, any person who violates any of the provisions of this chapter shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in Chapter 1.12 Section 10.24.080 is hereby amended to read as follows: 10.24.080 Penalty Except where otherwise specified, any person who violates any of the provisions of this chapter shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in Chapter 1.12. Chapter 10. 25 is hereby repealed. Section 10. 48.012 is hereby amended to become section 10. 48.070. Section 10.60.090 is hereby amended to read as follows: 10.60.090 Penalty Any person who violates any provision of this chapter shall be guilty of an infraction and, upon conviction thereof, shall be punished as provided in Chapter 1.12. Section 11.08.280 is hereby amended to read as follows: 11.08.280 Penalty Any person who violates any provision of this chapter shall be guilty of an infraction and, upon conviction thereof, shall be punished as provided in Chapter 1.12, except that no fine imposed for violation of any licensing and registration provisions of this chapter shall exceed ten dollars. Chapter 11.32 TRUCK TRAFFIC ROUTES* footnote is amended as follows: * For provisions regarding the pickup and delivery of goods, see Ch. 10.48 of this code. CMC ~visiom - September 2001 Page 6 Section 13.04.130,4 is hereby amended to read as follows: A. Bring to a park any alcoholic beverages, and no person may drink alcoholic beverages at · any time in a park except picnickers may bring to a park, and drink, beer or wine with their picnic meal, so long as they conduct themselves in an orderly manner. Section 13.04.180B is hereby amended to read as follows: B. In addition, in order m insure the public safety, health and general welfare, no person shall expose or offer for sale any article or thing, nor shall he station or place any stand, cart or vehicle for the sale or display of any article or thing, on a public street, within five hundred feet in a straight line from the nearest boundary of any park. Section 14.12.140 is hereby amended to re~d as.follows: 14.12.140 Penalty. Any person violating Sections 14.12.085 or 14.12.095 or otherwise removing, or willfully damaging or destroying any tree or shrub in any public right-of-way without obtaining the permits provided for in this chapter shall be guilty of a misdemeanor and upon conviction thereof shall be punished as provided in Chapter 1.12. Any person who violates any other provision of this chapter shall be guilty of an infraction and, upon conviction thereof, shall be punished as provided in Chapter 1.12. Section 14.18.0201 is hereby amended to read as follows: I. ~Specimen tree' means any of the following: 1. A tree described on the table below. [Insert Table] 2. A tree required to be protected as a part of a zoning, tentative map, use permit, or privacy protection requirement in an R! zoning district. Section 14.18.020J is hereby amended to read as follows: J. "Tree removal" means the destruction (in a twelve month period) of twenty-five percent or more, as determined by the Community Development Director, of any heritage or specimen tree by cutting, retarding, girdling, or applying chemicals. CMC revisions - September 2001 Page 7 t -7 Section 16.04.160 is hereby amended to read as follows: 16.04.160 Penalty. Any person, firm, corporation, partnership or copaxiatership who willfully violates any of the provis.ions, or fails to comply with any of he mandatory requirements of this chapter, is guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in Chapter 1.12, except that nothing herein contained shall be deemed to bar any legal, equitable or summary remedy to which the City of Cupertino or other political subdivision or any person, fi~m, corporation or partnership may be otherwise entitled, and the City of Cupertino or any other political subdivision or person, firm, corporation or partnership may file a suit in the Superior Court of the County of Santa Clara to restrain or enjoin any attempted or proposed subdivision, or acts, in violation of this chapter. Section 16.16.070 is hereby amended to read as follows: 16.16.070 Penalty. Any person, firm, corporation, partnership or cop~uhtership who willfully violates any of the provisions, or fails to comply with any of he mandatory requirements of this chapter, is guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in Chapter 1.12, except that nothing herein contained shall be deemed to bar any legal, equitable or summary remedy to which the City of Cupertino or other political subdivision or any person, firm, corporation or parmership may be otherwise entitled, and the City of Cupertino or any other political subdivision or person, firm, corporation or partnership may file a suit in the Superior Court of the County of Santa Clara to restrain or enjoin any attempted or proposed subdivision, or acts, in violation of this chapter. Section 16.20.100 is hereby amended to read as follows: 16.20.100 Penalty Except where otherwise specified, any person who violates any of the provisions of this chapter shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in Chapter 1.12. Section 16.32.080 is hereby amended to read as follows: 16.32.080 Penalty Except where otherwise specified, any person who violates any of the provisions of this chapter shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in Chapter 1.12. CMC revisions - September 2001 Page 8 There is hereby, added to the Municipal Code of Cupertino section 16. 40. 400 which reads as follows: 16.40.400 Penalty Except where otherwise specified, any person who violates any of the provisions of this chapter shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in Chapter 1.12. Section 16.52.016 is hereby amended to become section 16.52.060 and to read as follows: 16.52.060 Penalty Except where otherwise specified, any person who violates any of the provisions of this chapter shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in Chapter. 1.12. Section 17.32.060B is hereby amended to read as follows: B. On-Site Requirements. Each parcel with a unit for sale or rent is pemiitted one sign per street frontage, with a maximum of two signs per parcel. Only one sign may be building- mounted. Each sign is limited to four square feet per side. Freestanding signs shall not exceed six feet in height and shall be subject to the requirements stated in Section 17.32.010. Section 17. 32.060C is hereby amended to read as follows: C. Off-Site Signs Announcing House Sales or Rentals. Signs located off site announcing house sales or rentals are subject to the same requirements as on-site signs as stated in Section 17.32.060B and Section 17.32.010. Section 19.28.050D is hereby repealed. Section 19.28.070A is hereby amended to read as follows: A. Where a building legally constructed according to existing yard and setback regulations at the time of construction encroaches upon present required yards, one encroaching side yard setback may be extended along its existing building lines to no less than tltree feet from the property line if the applicant obtains written consem from the adjoining property owner thereby affected and receives approval from the Director of Community Development. Only one such extension shall be p¢llldtted for the life of such building. This section applies to the first story only and shall not be construed to allow the further extension of an encroachment by CMC revisiom - Sepmmber 2001 Page 9 any building, which is the result of the granting of a variance or exception, either before or after such property becomes part of thc City. Chapter 19.48 is amended changing all references to "PD" to "P" in the chapter title and throughout the chapter. Section 19.52.020 "Affordable units" is hereby amended to read as follows: "Affordable units" means housing units in which the rent does not exceed thirty percent of the HUD income limits for lower and very low income households for Santa Clara County adjusted for household size. Section 19.52.060B is hereby amended to read as follows: B. Those units targeted for lower-income households shall be affordable at a rent that does not exceed thirty percent of the HUD income limits for lower-income households for Santa Clara County adjusted for household size. Section 19. 80. O $OB (1)j is hereby amended to read as follows: j. Second story decks in R1 zoning districts are regulated by section 19.80.040. Section 19.80.040 is hereby amended to read as follows: All new or expanded second story decks in the R-1 zoning district with views into neighboring residential yards, unless facing a right-of-way, are required to obtain a decision for approval, conditional approval or denial of an exception by the Design Review Committee in order to protect the privacy of adjoining properties ..... [Remainder unchanged.] Section 19.84.050 is hereby repealed. Section' 19.100.050C is hereby amended to read as follows: C. The exception will not adversely affect neighboring properties by causing unreasonable numbers of vehicles to perk on the neighboring properties or upon public streets. The decision of the Planning Commission to grant or deny such an exception may be appealed to the City Council pursuant to the procedures described in Chapter 19.136. CMC revisions - Septembe~ 2001 Page 10 PUBLICATION CLAUSE: The City Clerk shall cause this ordinance to be published at least once in a newspaper of general circulation published and circulated in the City within 15 days after its adoption, in accordance with Government code § 36933, shall certify to the adopt{on of this ordinance and shall cause this ordinance and her certification, together with proof of publication, to be entered in the Book of Ordinances of the Council of this City. This ordinance shall take effect and be in force thirty (30) days after its passage. INTRODUCED at a regular meeting of the City Council of the City of Cupertino the 1'/th day of September 2001 and ENACTED at a regular meeting of the City Council of the City of Cupertino the __ day of ,200__, by the following vote: INTRODUCED: September 17, 2001 PASSED: Vote: Members of the City Council Ayes: Noes: Absent: Abstain: ATTEST: APPROVED: City Clerk Mayor CMC revisiom - September 2001 Page 11 1.12.010 Chapter 1.12 3. A fmc not exceeding five hundred dollars for a third violation of the same chapter of this code GENERAL PENALTY* within one year. ~', ,C.. Unless otherwise specified by this code, a Sections: misdemeanor is punishable by a fmc not excee~in§ 1.12.010 Violation of code. one Ihousand dollars, imprisonment for a t~rm not 1.1~.020 Euch day a separate offense, exceeding six months, or by both such fine and 1,12.030 Pubfic nnlannce abntement, imprisonment. (Ord. 1697 (part), 1995; Ord. 1497 § 1, 1989; Ord. 1179 § 1, 1982: Ord. 854 (part), * r-~ mtot~ pm~ions a~ins ~i~i~s to ~ mos up to 1978: Ord. 829 (part), 1977: Ord. 692 § 1, 1975: Sl,OOO.OO,~,.~,;sonn~ntuptomnmm.~bo~,s~Oov. C~-- Ord. 500 § 1, 1971) § 369o1. 1.12.010 Violation of eerie. 1.12.020 Each day a separate offense. A. ~t is unlawful for any person to perform any A p~rson committing an act desisnate~_ in Section act that is prohibited, made or declared to be unlawo 1.12.010 is guilty of a separate offense for each and fnl or an offense by tho code, or to violate any every day during any pod, ion of which any violation provision or fail to comply with any of the require- of any ordinance of the City is committed, contin- meats of this code. A violation of ally of tho pwvi- Ued or permitted by such pea'son, and is punishable sions or failing to comply with any of the ~,,~an,o- as provided in Section 1.12.010. (Ord. 1697 (pazt), ry requir-~nents of the code shall constitute ~ 1995: Ord. 829 (part), 1977: Ord. 500 § 2, 1971) . ¢~ nO.$ob_r~.*-,,-,~o~=, ~ ._~:p.p.r=. ~ 1. When thc violation of a provir, ion of thic 1.12.030 Pnblic nuimmce abatement. code i~ 3p~cifioally doolar-~i to bt a misd:~-,"or; Without limitation to any of the provisions speci- i,~ ~ ~ fled in Sections 1.12.010 ancl 1.12.020, any building r..j~ 2. Wh~, thc violation ia th~ fourth, o~ a~o~ or slmmm, r~t up, ~ eon~m~d, ~lter~l, ,ioL~ou, within on~ year, of tho s---'- o~;"o',ce enlarged, converted, moved or maintained contrary 0thc~vise de~-ned to b~ an infraction in which co-e to the provisions of any zoning or building ordi- 3aid fourth or mom viel*~un r~o" cot,,titute a ~-- nance of the City, or any rule, re~dntlon or order dc,,~attor, issued or promulgated pursuant thereto, and/or any · ~., ~ When a violation of a provision of this code use of any land, building, or premises conducted, which otherwise constitutes an infraction continues operated or maintained conu'ary to the provisions of to occur and the violator has been charged with a any zoning or building ordinance of the City, or any violation of the same provision as an infraction on nde, regulation or order issued or promulgated at least four separate occasions and within one year Pummnt thereto, is unlawful and a public nuisance, has forfeited ball on each such occasion, in that and the City Attorney shall, upon order of the City event, the City Attorney, in his or her discretion, Council, immediately commence an action or pro- may charge a violation of any such provision as a ceedings for the abatement or removal and misdemeanor, enjoinment thereof in the i~nnnor pfovidP..d by law, ~). -~. Unless otherwise specified by this code, an and shaH take such other steps and shall apply to infraction is punishable by: such court or courts as may have jurisdiction to 1. A fine not to exceed one hundred dollars for ~,~t such relief as will abate and remove such a first violation; buildings or structure, and restrain and enjoin any 2. A fine not exceeding two hundred dollars for person, f'n'm or corporation, whether as principal, a second violation of the same chapter of this code agent, employee or otherwise from setting up, erect- within one year; and ing, building, maintaining or using any such build- 13 (C~e~no ~-~5) B. Notwithstanding the above, any violation constituting a misdemeanor may, in the discretion of the City Attorney, be charged and prosecuted as an infraction. 5.04.260 5.04.260 Sworn statements required by For purposes of this section, "floor area" means chapter not eonclusiv~ the total floor space in terms of square footage Infor~,~ation confidential, occupied by an owner, lessee or tenant in a building, No statements set forth in any sworn statement less fifteen percent. This adjustment allows for required or permitted by this chapter shall be con- elevator shafts, stairwells, courts or atria (uncovered elusive as to the matters set forth therein, nor shall and open to the sky), and woms exclusively housing the filing of the statement preclude the City fwm building operating equipment. (Ord. 1822 (pan), collecting by appropriate action such sum as is 1999: Ord. 1612 § I (part), 1992) actually due and payable under this chapter. Such statements and each of the several items therein 5.04.?90 Agents, solicitors and contained shall be subject to review and verification salespersons. by the Collector. Information furnished or secured Each agent, solicitor, and salesperson selling or pursuant to such statements which relate to the soliciting, or taking orders for the sale or furnishing amount of tax to bc assessed against the applicant of any paintings, pictures, portraits, photographs, or licensee shall be confidential and shall not be orders for advertising or for any goods, wares, mcr- made available to thc public. (Ord. 1612 § I (part), chandise or service at retail, not otherwise provided 1992) herein when not in connection with any fixed place of business within the City licensed under this chap- 5.04~70 Extension of time for filing sworn ter, shall pay a business license tax of seventy-five statement, dollars. C~,.,,.cncing with cnn~t,.cnt of thc ordi Thc Collector may, for good cause shown, extend nanz~ codifizd in this chapter, and for thc ftc,~od of the time for filing any sworn statement required or one year; the tax tare will 5c fife9' l~tecnt of thc. permitted under this chapter for a period not to ~stablinhtd r~t~, (Ord. 1612 § 1 (part), 1992) exceed thirty days, and may waive any panalty that would otherwise have accrued. (Ord. 1612 § 1 5.04..300 Amusement centers. (part), 1992) As used herein, the term "amusement center*' means any place to which thc public is admitted or 5.04.~.,80 lmlM}sition of tax--Business invited, where eight or more coin- or token=oparated generally, amusement machines are maintained, operated or Every parson engaged in a business not spocifi- available for operation. Every person operating an cally mentioned or classified in this chapter, within amusement center shall pay a business liCense tax the City of Cupertino, shall pay a business license of one hundred fifty dollars, and five dollars per tax in accordance with the following schedule: machine per year. ~o,...-r, cncin§ with cnr~t~cnt of A. A basic tax of seventy-five dollars per year; thc ordinnnoo c~ified in thiz chapter, *qd for the ]3. In addition, each such person shall pay a~c~ po~'ed mf one ye~ ths ,-x raw will 5c fifty Fartant as follows: of the e-.~ablir, hexl ra=. (Ord. 1612 § I (part), 1992) Square Feet Rate per Square Foot 5.04-310 Amusements generally. Every person operating a business where admis- 0 5,000 .0200 sion, fares, or a fee is'charged or made, or a collec- 5,001~25,000 .0175 tion or conlribution is received (and which are not 25,001~75,000 .0150 otherwise provided for in this chapter) for entrance 75,001~100,000 .0125 to amusements, such as exhibitions, shows, games, 100,001~150,000 .0100 rides, tent performances, ball games, dart games, 150,001 and above .0025 illusions and other amusements or concessions simi- ia cec4-ion +hi 5.04.310 lar in character to those, or any of those herein 'enaet~..ent of the ordinnncc codified in thi~ chapter. · before named shall pay a business license tax of ~'~d for the pitied uf uno yoar, tho tnx r.,tc will bc seventy-five dollars per day. Com, a~neing with fifty ~per¢ont of t-ho evtnblished rate. (Ord. 1612 § 1 ' ~ ~_ cne~t~,cnt of tho ordinance codified in tb;v chapter. (part), 1992) t ~f . nad for the pet=Jori of ~n~e y~o~, the tax mm will~ ~& ~g~t l~/t( fifty pergent of the gr~ ~li£hed rate. (Ord. 1612 § I 5.04.3~0 Lumberyard, building material (part), 1992) yard, jnnkynrd--Plant nurseries. Every person owning or operating a business $.04.320 Apartment houses and apartment engaged in the sale of lumber, building material, complexes, secondhand building material, junkyarcl, or outdoor A. For purposes of this section, apartment house yard of similar Character, or wholesale or retail complex means two or mom individual buildings nursery, shall pay a business license tax in accor- containing dwelling units located upon the same chance with the following schedule: property, or on contiguous pmpe~ under the same A. A basic tax of sevonty-five dollars per year. ownership. B. In addition each person shall pay a fee of five B. Every person owning apartment houses, or dollars per year per acre of space owned, leased or apartment house complexes, shall pay a business rented for the purposes set forth above. /_ license tax of one hundred dollars per year for up C. Co,,,,,...,~clng with cnn~t~.,ant of the ordi,,,,,,,'- to thefirst four dw¢lling units, and seveo dollars pereodified in thi~ chapt~, and for thc p~,;od of on~ year for each additional dwelling unit; provided, ye--. the t~,,( rP~ will I:t fifty Fsrcsnt of ti~ numb however, that the dwelling units used in computing lish~ ~atc. (Ord. 1612 § I (pan), 1992) the obligation to pay the business license tax shall -- be dwelling units rented or leased, and the dwelling ~.04..360 Coin-operated device (persons on- units held for rent or lease shall not include a dwell- gaged in the business of renting, lng unit occupied by the owner.,C~...~n¢ing with leasing or opernting the s~me). ~l~c~- ~neotmont of the ordinan~ codified in ~hi~ chapter. Every person engaged in the business of renting, ~x.(~C.{~td~nd for tl~ r~,ied of one year, thc mx into will be leasing or operating coin-operated vending ma- l'd't~ l~rccnt of th,. cstablislx~l ,at~. (Ord. 1612 § 1 chines, shall pay a business license mx of seventy- (part), 1992) five dollars per year, and five dollars for each ma- chine. ~...~x~noing with onnetn',ent of th~ o~dinnnec ~'~ S.04..330 Seasonal lot sales, eodifiod in thic ~hapmr, nnd for the FOl.'ed of one Every person engaged in the business of seasonal y~--. 0'e '°x rap' xvill be fifty ~_~ent of th~ lot sales shall pay a business license tax of one lished mt~ (Ord. 1612 § I (pan), 1992) hundmt fifty dollars per year. C~,,nen&in~ with I~l f~-' ~ --¢na"h"cnt of ti~ ordinan¢~ cedifi~ in thts' ~hapt~r, $.04.3?0 Contractors. '~.~.~{. ~ and for the l~.ied of one year, tho mx r~v~ will I~ Every person engaged within the City of Cupeni- ~"~ g~'"~fifty peroant of tho e~t~blishcd late. (Ord. 1612 § 1 no in the business of contracting as n general build- (part), 1992) lng contractor, electrical contractor, plumbing con- tractor, lathing and plastering contractor, subcontrac- S.04.340 Concerts, cironses and .perfot~ances. Every person operating a concert, circus or other performance shall pay a business license tax for the first day of one hundred fifty dollars and twenty- ~' five dollars per day thereafter. Co,,,~,~cn~in~ with ¢c.s=nino ~-~) 112 .04.370 tor, or specialty conlractor, as those terms arc de- -codified in thic chap'=r, and for the pariod of one fined by state law, shall pay a business license tax y~ ~e 'ox ri*- will be ftfty percent of of seventy-five dollars per year. Co,,,r,,cn¢ing with !~ed ra~ (Ord. 1612 § 1 (part), 1992) onm~..cnt of tho ordinnneo oodified in this chapter, i ~ ~ 6' c ~- -nnd for thc pe.;od of one y~ar, tho mx rote will bo $.04.420 Private schools. ~-~l~ll/J,- ftfty r~o.v..at oftl~e..~lishcd ~-.ac. (Ord. 1612 § 1 Every pe~on opemting a private school shall pay (pan), 1992) a business license tax of one hundred fifty dollars per year. C.,~=-~enoing with onaet,-=c~lt of thc ordi $.(M.380 Home occupations, r--.cc codified in thic chap+=r, and for tho period of Every person engaged in a home occupation, as one ye-% tk. t.x ,~t, wm be fifty F-rcent of ~'o defined by the zoning ordinance of the City, shall enmblish~ r~+'.. (Ord. 1612 § 1 (part), 1992) pay a business license tax of seventy-five dollars per yesF. Co-- _-nzing with eto"tl~.~n! of ,h~ oraln..e~ 5.04.430 Taxienbs or automobiles for hire. jh~v~' .co~;fitd in Ibis cb~% o-d for*~e pied of one Every penou engaged in tbebusiness ofpmvid- O..~.~C~.year, tho tax mtn will bo fif~ ~t of tbe o0tab ing taxicabs or antomobiles for hire shall pay a busi- liohed rut~ (Ord. 1612 § 1 (pail), 1992) ness license tax of seventy~five dollars per year for each vehicle operm~ within the City limits. 6:.-.. 5.04,390 ltotels~ motels, auto coutts~ and ,.e~,,.~g with e. nm.r~.~ent ef thc ordinnnee codified lodgJ.glm~e~, in thic ci'~+er, -"d for t~'t ps_'od of one year, t~'- Every person engaged in the business of operat- -'-~ ra~ w~H be f;_~ F~_rtent of tho ootnhlishcd ingahot~l, mo~l, orlodginghouse, shallpay almost- (Ord. 1612 § 1 (part), 1992) ness license tax of seventy-five dollars per year, plus five dollars per year for each room. Ce~ ..... cnn $.04.440 Thenters and shows. ,,^ ~.~._ :~ng with en~.t~ent of tho ordinnneo eodif'L~-i in thic. Every person engaged in the business of opemt- ~ C~¢h~tcr' ~nd for tho pe. :od of ono y:=, tho =x r-+- ing a ~.__~t_~, motion picture show, playhouse, event, ~" '- -'will bo fifty ps. mit of the es+~;o%d r~v. (Ord. and all other shows or eothibitious (except those 1612 § 1 (part), 1992) conducted in the open or under canvas) not other- wise provided for in this chapter shall pay a busi- 5.04.400 Peddling. ness license tax of one hundred fifty dollars per year Every person peddling any goods, food, wares, plus two dollars per year per seat. ~,.~.~n~.ng mago~nes, or merchandise not otherwise provided with ¢~-' _-n~ of k~'s ord~"~-¢e codified in ihiz for in this chapter, shall pay a business license tax ~h~pter. -~J for th- F,'~od of one yens, of one hundred fifty dollar3 per year. C~....~nsing wili be fifty permnt of tho oatnblished late. (O~. i/~r-~- wi~ cn~.t~,.~nt of thc ofdinmloo zodifiod in thic 1612 § I (part), 1992) will be l=d¥ pc~.~t of th~ ,.~tdl~&,.d .a~. (Ord. 5.04.4S0 Smnll.income 1612 § ! (part), 1992) Upon filing of an application for a small-income business license and an affidavit stating, among S.04.410 Rest~ convnlescent, guest and other things, that the gross dollar volume of contem- fmnily cafe homes, pln_!~ business would be greater than one thousand Unless otherwise exempted by state or federal dolla~ but less than five thousand dollars; and upon law, every person operating a rest, convalescent or the Collector's finding and determination that the guest home, or child care service, shall pay a busi- representations arc true and correct, the Collector ness license tax of one hundred fifty dollars per may order the issuance of a small-income business ~ ~ ~_r'~- year. ~sm,..en~g with cna~t~,~nt of thc oA4inan¢¢ license that shah be for the current calendar year 113 ¢c,~i,~ ~-~) -- Insert as last line of' Sections 5.04.290, 5.04.300, 5.04.31 O, 5.04.320, 5.04.330, 5.04.340, 5.04.350, 5.04.360, 5.04.370, 5.04.380, 5.04.390, 5.04.400, 5.04.410, 5.04.420, 5.04.430, 5.04.440 and 5.04.450. This amount shall increase annually from 1992 based on.the indexing formula in section 5.04.460 of this code. 5.04.450 and shall be issued upon a payment of twenty-five once in one year. Any determination by the Collec- dollars.l(Ord. 1612 § I (part), 1992) tor under this section is subject only to fights of i~lSerJ~- " appeal to the City Council as afforded by this 5.04.4~ Indexing. chap~r. (Ord. 1612 § 1 (pan), 1992) Eve~ tax imposed by thi.~ chapter shall be auto- maticaUy increased each year by a percentage which 5.04.480 Appeal procedure. shall be equal to the percuntage increase of the A. Any person, applicant, or licensee may appeal consumer price index as shall be reflected in the any decision of the Collector under this chapter to most _ro~_~nt report of consumer prices for the San the City Council. Any person so aggrieved may ~ay Area Stnndnrd Metropolitau $~nfiqic, al appeal by filing a written notice of appeal with the Area using 1992 as the.base year. The annual rate City Clerk within founem days from the date the increase shall be calo,l~t-d by dividing the consum- Collector issues hi-~Yh~ decision in writing. er price index for October of each current year by B. An appeal not filed within such time shall be the base year with the resulting fi~re r~v, sunting barred. The appeal shall slate the grounds thereof. the percentage increase for the lax due the following C. Upon ~_~ipt of an appeal, a date for hearing January. The formula shall be as follows: before City Council shnll be set and will be held within thlny days from the dale of filing of the A divided by B times C equals D appeal. D. The City Clerk shall give notice to such A = current year CPI; B = base year CPI; person who files an appeal of the time and place of C = base year l~x rate; D = current year tax ~ hearing by serving it personally or by depositing it (Ord. 1801 § l, 1998: Ord. 1612 § I (pan), 1992) in the United Stn~-~ Post Office at Cupertino, Cali- fornia, postage prepaid, addressed to such person at 5.04.4?0 Rt~ln~dl~'naon~Collector her/his last known address. authority. E. The City Council shall have authority ~o A. In any case where a licensee or an applicant detormine all questions raised on appeal; provided, for a license believes that his~ber individual business however, that no such determination shall conflict is not assigned to the proper classification because with any substanlive provision of the chapter. (Ord. ofcircv~rns~ncespeculiartoit, as dislingnished from 1612 § 1 (part), 1992) other businesses of the same kind, s~ne may apply to the Collector for reci~,~ification. Such application ~.04.490 Effec~ of businoss license code. shall contain such information as the Collector may Neither the adoption of this chapter nor its super- deem necessary and require in order to detennix~ seding of any portion of any other ordinance of the wbether the applicant's indiviOnnl business is prop- City shall in any manner be constmed as authorizing erly classified. The Collector shall then conduct an the conduct nor continuance of any illegal or unlaw- investigation following which s/be shall assign the ful business, or any business in violation of any applicant*s individual business to the classification ordinance of the City. (Ord. 1612 § 1 (part), 1992) shown to be proper on the basis Of such investiga- lion. The proper classification is that classification5.0~1..~00 Violalio~Penaity. which, in ~ opinion of the Collector, most nearly Any person who violates the provisions of this fi~s the applicant's individual business, chapter shall be guilty of an infraction, and upon B. Any resulting reclassification shall not be conviction thereof shall be punished as provided in retroective, but shall apply to the time of the next Chapter 1.12. (Ord. 1612 § 1 (pa~), 1992) regularly ensuing calculation of the applicant's tax or fee. No business shall be classifwxl more than 5.32.120 for such period of time as required by state and the premises in order to insure that the operation of '- federal law and for a period of three years, for pur- bingo games at the premises does not constitute a poses of this chapter. (Ord. 777 (part), 1977) violation of any s,~e or federal law or provision of this code. 5.32.130 Total value of prizes. B. The Sheriff may inspect the records and The total value of prizes awarded during the special bank accounts containing profits derived conduct of any bingo games shall not exceed two from bingo games of any organization conducting hundred and fifty dollars in cash or kind, or both, bingo games whenever deemed reasonable and for each separate game which is held. (Ord. 777 appropriate to insure compliance with the provisions (part), 1977) of thi~ chapter. (Ord. 777 (pan), 1977) $.32.140 Phys~,.~! presence at bingo ?,,,e $.32.L90 Permit required. required. No organiT~,tlon shall conduct a bingo game No person sb*!! be allowed to participate in a without lust ol~in~g a permit from the City Coun- bingo game,ml--~s such person is physically present cil to do so. (Ord. 1705 (part), 1995: Ord. 777 at the time and place at which the bingo game is (pan), 1977) being conduct_,~l_o (Ord. 777 (pan), 1977) S.32.200 Application for p~'mit required. S.32.LS0 Hours of operation. Wfimm application for a l~rmi! required by this All bingo games shall be con~uc~ only during chap~ shall be made by affidavit uncut ponalty of the hours of noon to midnight. (Ord. 777 (part), perjury and filed with the City Circ. Such applica- 1977) tion shall ~ A. Nan~ of organization: name, signanues and S.32.160 Violations, l~"~t~. , eddrr~u~ of all th~ officers of thc organization: Any ~,oon who vioht~ any provi~on o~ thi£ B. Days and hours of operatiou of bingo ~ ~.. ~haptar shall b~ guilty of an infrr~ion, ~ upos C. Attached copies of c~ificates or l~ten ~.~C~( conviction thercof, ~ll b~ punidmd m provided in dencing ex~mpt stares as ckscrihed in Section ~1~ Chair 1.12. (O~d. 170~ (~0, 1~$. O~d. Y?Y 1977 D. Add ofp mi bingo $.32.170 Administrative authority. ~. Staten~nt of own~ship or l~as~ of pmmis~s; There are conf~nut upon the City Mamg~ thos~ F. Purpose(s) for which such premis~ are used powers and duties necessary for the administration by the organization; of this chapter. In addition, there a~ also conferred G.- Statement of owncr~p of bingo equipment upon the City Mana~r the authority and power to used in the operatiun of bingo ~ames; designate such officers and employees of the City H. Statement of consent for Sheriff to inspect and of other coopeming public agencies, such as any bank *_~ounts con~!ning profits derived from either the Central Fire Disuict or the Sheriff's De- bingo games; panment, as may he required to assist him in can~y- I. Name of each individual, corporation, pan- ing out the intent and purpo~ of ~his chap~. (Ord. nership or other legal ontity which has a financial 777 (pan), 1977) imerest in the conduct of the bingo ~ames; J. Name of person responsible for the operation $.32.180 Authority to inspeci prem!,~s and of the bingo games; A. The Sheriff shall have the authority to inspect 131 (~ ~2.~ 8.01.010 O. "Pet shop" means a pe~on who obtains mi- a. Has inflicted severe injury on a human or mals for sale, exchange, barter, or hire to the gemr- domestic apimal on public or privn**- property; or al public as a principal or agent, or on consignment, b. Has, after having been designated potentially or who holds himself or he, elf out to be so eh- dangerous, engaged in thc same behavior that result- gaged, ed in that designation. (Ord. 1644 § 2 (part), 1994) P. "Private kennel" mcam a person who main- talns within or adjoining bis or her l~ivate residence&01.020 Chapter not to regulate use of three or more dogs over four months of age, or land three or more cats over four months of age, but no This chapter is not intended to regulate the usc more than a combined total of five dogs and cats; of land. Other pmvisi0ns of the Cuperdno Municipal such animals to be for that person's recreadonal useCode regulatc the number and types of animals and or for exhibition in conformation shows, field or animal establishments that may be maintained in obedience trials and whe~ the sale of o~ is specific zoning districts. No~hing in this chapter is not the primary function of the kennel. The mainte- intended to supem~te any provision of the City's nance of more than two male dogs or cats used for Zoning Regulations. (Ord. 1644 § 2 (paxt), 1994) breeding purpuses for wbich COml~e~tJou is re- ceived, or the parmrifiou and rearing of more than 801.030 Animals running at large. two litters of dogs or cats in any one calendar yearNo pemon owning or having control of any ani- from the total rmmher of females owned or main- mai shall permit such animal to stray or run at large rained by that person on the premises, shall be a upon anypublic smut or other pubiic place, ar-af~m rebu~able presumption that such animals are owned any prJv~_..~ plao~ 8f p~,~' or common a~a of ormaintainedforthepmposesofcommexcialbt~d- any planned development, clus~r, townhouse or ing; and the owner ofthc premi-~es shall be subject ' condominium pmject,]Wimout me consent of the to the Permit .requirements of a commercial k~. oWP.~r or pemon in control thereof. (Ord. 1644 § 2 Q. "0uamndne'mcansisolationofananimaiin (pa~t), 1994) a place and manner approved by the health officer. R. 1. "Potemiaily dangerous dog" means any dog, 8.01.040 Conditi°ns related only to cxcept a dog assisting a peace officer engaged in seizures of dogs running at large. law enforcement duties, that: A. An apimai conffDl o~Jcer shall not seize or a. Without provocation* inflicts bites on a bu- impound a dog for running at large in violation of man, or a domestic animal wbile on public or pti- Sectiou 8.03.010 when the dog has not slrayed from vatc pmpes~y;, and is upon private property owned by the dog b. Without provocatien, chases or approaches owner or the person who has a right to control the humans or domestic apimals or livestock on thc dog, or upon private property to wbich thc dog streets, sidewalks or any public grounds in a threat- owner or pemon who has a fight to control the dog ening manner or apparent attitude of n**~.t~: has a right of puasession. c. Hasaknownpropemity, tendencyordispusi- B. A dog that has strayed from but ~.en retumed tion for unprovoked n,,n~_t~; causing injury and to thc private property of its owner or thc pe~on thrent_*~_~g thc safety of humans or domestic ani- who has a right to control the dog shall not ho mais; or seized or impuundcd merely for violation of Sectimt d. Has been specifically trained to guard pcrsous 8.03.010, but in such a case a citn*~on for such and/or property, violation may be issued; provided, however, that if 2. "Dangerous dog" means any dog, except a in such a situation, the owner or the person who has dog assisting a peace officer engaged in law en- a right to control the dog is not at home, the dos forcement duties, that: may bc impounded, but the officer shall post a 8.03.010 Chapter 8.03 Ensu~ ~ when ~ dog is in a house. ~ b~ilding or similar slructure, DOGS AND CATS and of snme are secul~:l to prevent the from without the assistance of the or Sections: to control such dog; 8.03.010 Restraint of do{s, 4. a sign advising of thc of a &03.020 Maximum number of dogs, ,-nts at th~ entmn~ ." where- or litters, in any such is confined. The ~ capa- 8.0.3.030 Vaccination of dogs and cats. blc of by a child normal 8.03.040 Registration of dangerous dogs. readin{ a second grader, 8.03.030 L}__~_ se required. 5. It is that the of subsec- 8.03.060 License fees. tion (C)(2), shall not I owner or 803.070 _l_~_~uance of license, person with the to a dangerous dog 8.03.080 Metal tags. living in an a ' ' 8.03.090 License period. D. Subsection A of this section shall 8.03.100 Record of licenses, not apply to 8.03.110 Presentation of license on 1. Guide dogs for or deaf while per- request, forming thor duties; 8.03.120 Veterinarian responsibilities.. 2. Dogs1 or conformation 8.03.010 Restruim of dogs. 3. Dogs in legal The owner or hunting activities of livestock; 4. DOgs a security or assisting a in activi- six or shall keep such dog ties: and behind a 5. tnined for the above- B. In a described on private with the dan- landowner, so long as dogs to every and the direct conffol of who The sign do not violato any other ' ' shall by a child with normal reading grader, of this section shall be a C. Notwithstanding and 13 above, (Ord. 1644 § 2 (pa~), 1994) th~ owner or ~ fight to control a den- g~mus dog shall: 8.03.020 Maximum number of dogs, cats I. or her own physical or litters. restraint I ~ not to exceed six A. No person shall keep or maintain more than feet in length; . a two dogs over four mouths of age. No pe~on shall 2. . for the dog and locked keep or maintain more than three cats over four pen or __ a secured months of age. In no event shall there be more than to th~ sides, secure hot- one unspayed cat over four months old and one tom sides unspayed dog over four months of age on any pre- mises. This resUiction shall not apply to premises a fence not less than six maintained by a veterinarian licensed by the State of California for th~ practice of veterinary medicine 8.03.010 Restraint of dogs. The owner or person with the right to control any dog shall keep such dog under his or her own physical restraint by means of a leash or shall keep such dog confined behind a fence not less than six feet high except for any of the following: A. Guide dogs for the blind or deaf while performing their duties; B. Dogs participating in field or obedience trials or conformation exhibitions; C. Dogs assisting their owner/handler in legal hunting activities or in the herding of livestock; D. Dogs assisting a security guard or assisting a peace officer engaged in law enforcement activities; E. Dogs assisting in search and rescue activities; F. Dogs being trained for any of the above-described purposes on private property with the permission of the landowner, so long as these dogs are under the direct control of the trainer/handler. 8.03.020 or premises with a valid permit from the City Man- least ~hirty days prior m the date of such cancella- ager for a private kennel, commercial kennel, pet tion or material change. shop, animal menagerie, or alnimal shelter. A female C. Owners of dangerous dogs unable to meet the dog or cat shall be rebv~hly pres~med to be requirements of subsection or A or B of this section, unspayed unless the ovmer provides evidence of shall surrender the dogs to ~he City Manager for spaying. Written ce~ificalion from alicensed veteri- humane destruction or other disposition, by discre- narian that an ~nimal calglot be spayed for health tion of the City Manager. reasons or is incapable of breeding shall he deemed L~. Vloi'allm~ of I1.;~ ~l~ul~ ~hall b~ punishabk a satisfactory substitution for a certificate showing aa a mi~lc-'z, cmor. (Ord. 1644 § 2 (paxt), 1994) an alMm~l is spayed. B. No person shall allow the parturition and 8.03.0~0 'License required. rearing of more than one liter of dogs or cats in any blo pe~on shall malptsi~ or board any dog or cat one calendar year from females owned by him or four months of age or older that has not been Ii- her or mainlined on bis or her premises without a cenSed pmsuant to the provisions of this title, ex- valid permit from the City Manager for a private cept: kennel, commercial kennel, or aninlal shelter. (Ord. A. A license shall not be required for an al~imal 1644 § 2 (part), 1994) owned or under the control of a nonresident of the City, and that is to he kept in the City for less than 8.03.030 Vaccination of dogs and eats. thirty days in any twelve-month period. Every owner of a dog or a cat over four months B. A license shall not be required for dogs or of age shall cause such dog or cat to be vaccinalmi cats temporarily brought into the City for entry into with an anti-rabies vaccine approved by the S~nt~- an event, show, or exhibition sclmiuled not mote DepamnentofPublicHealth. Revaccination shall he than ten days thereafter. (Ord. 1644 § 2 (part), made at such intervals of t/me as may be proscribed 1994) by the Stnt~_ Depamnent of Public Health. Compli. ance with the provision of this section shall he a 8.03.060 License fees. condition to the issuance or renewal of dog ava cat A. License fees for each dog or cat within the licenses. Vioi,d/u~ of Ih~., ~un ~dudl L~ pm~h- City, including zeduced fees for spayed females or ~bi~ z~ amir, damsanor. (Ord. 1644 § 2 (pa~), 1994) neutemcl males, shall be fixed by resolution of the ~. o ~. ~ 5~' City Coma:iL Dog and cat license fees shall not he 8.0~.040 Registration of dangerous dogs. refundable. A. Every owner of a dangerous dog over four B. The City Manager may require the submis- months of age shall ragis~a' such dog with the City sion of a certificate of a licensed veterinarian s~nti~g Manager. Such registration shall he renewed on an that a dog or cat has been spayed or nentered, or annual basis. A regi~h-,dion fee, and a fee to he cannot he spayed or nentered for health reasons and charged for multiple inspections of required confine- is incapable of breeding, or is biologically incapable ment facililies for such dogs, shall be fixed by reso- of breeding, prior to issuance of a license of a lesser lution of the City Council. fee. B. Every owner of a dangemns dog over four C. A late fee may he charged in accotxlavxe with months of age shall obtain a public liability insur- o~er fees and charges adopted by resolution. ance policy frtan an insurer licensed to practice in D. Licenses and tags for dogs used principally the State of California, a singie-incident amount of for the putpnse of guiding persons who are blind or not less fl~an fifty thousund doila~. Such owner deaf, and for dogs used in law enforcement by shall give written notice to the City Manager of any govemmental agencies shall he issued upon request cancellation or mn~efial change in such policy at without charge. (Ord. 1644 § 2 (part), 1994) 193 8.03.035 Keeping of dangerous and potentially .dangerous dogs. A. The owner or person with the right to control any dangerous or potentially dangerous dog shall: 1. Keep the dog under his or her own physical restraint and control by means ora leash not to exceed six feet in length. In addition, a dangerous dog must be muzzled; 2. Post a sign advising of the presence ora dangerous or potentially dangerous dog at the entrance to every place where any such dog is confined. The sign shall be capable of being understood by a child with normal reading skills ora second grader. B. In addition to Subsection A of this section the owner or person with the right to control a dangerous dog shall: 1. Maintain for the dog an enclosed and locked pen or kennel having secured sides and a secured top attached to the sides, and having a secure bottom or floor attached to the sides, or with sides embedded not less than two feet into the ground, behind a fence not less than six feet high, except where the dangerous dog is kept in an apartment or condominium; 2.. Ensure that when the dog is in a house, apartment, building or similar structure, that the windows and doors of same are secured to prevent the dog from exiting without the assistance of the owner or person with the right to control such dog. 10.25.010 x. Chapter 10~25 10~.5.020 Compliance required. '- ",, A. No person shall .smoke where smoking REGULATION OF SMOKING IN CERTAIN prohibited by this chapter. PUBLIC PLACES* B. It is unlawful for any person who or controls a building or structure to permit, Sections: allow smoking in violation 10.25.010 findings. C. Owners, operators, property and 10.25.020 officers of homeowner residential 10.25.030 properties are deemed not to violation of the 10.25.0d0 requirements of subsection this section by 10.25.050 posting or causing to in accordance 10.~.060 with the provision of by notifying 10.2~.070 Posting and notices, violators that their arc in violation of the 10.2~.080 Enforcement. -- law. (Ord. 1647 § 1994) IO~Z~.090 Penaltie~ 10~.~.110 Property owners to lO-~q.030 be more restrictive, words and phrases, whenever used in this shall be construed as defined in this *Prior ordinm~cc histmy: Ords. 861 and 1294. smoking area ventilation system*' 10.2~.010 Legislative f'mdings, a' ventilation system which: The City Council of the City of Cupertino finds 1. Negatively charges the air going into a room; ._ and declares that: 2. Has a prefilter bank with a minimum of nine- A. There is substantial evidence that smoking: ~; and a major cause of disease among smokers. Provides the following minimum number of B. Secondhand smoke presents a public of air under the following circumstances: risk among nonsmokers as well. a. with ceilings of ten feet or more C. Smoke from pipes, is a in height, number of exchanges as required by highl) the Uniform Code, individuals, b. ten feet in height, twice D. Substantial medical indicates that thc l required by the Uniform secondhand smoke is that Building Code. inhalation, "Bar and/or means an area of nonsmokers, which is devoted to the of alcoholic bever- E. The City has a in protect- ages for consumption by on the premises and ing the public citizens and its visitors, which the servicing of food is , incidental to the F. a risk of t as bars serving fire and safety, food, but to which are not (~. in buildings which are allowed entry. ' contain a public , with limited exceptions will advance bar or cocktail lounge, the term "bar cocktail thc g ,.oal's of public health and safety. (Ord. 1647 § lounge" shall not area. 1 (part), 1994) "Bingo game" means a game conducted b~an operator licensed pursuant to the provision of Ch~ ter 5.32 of this code. 10.25.030 ~..Employment" shall have the same meaning retail stores, retail services establishments, ~ as ifomia Labor Code Section 6303(b). theaters, health facilities, public and the ~sed" means closed by a roof and four walls like. with openings for ingress and egress. B. Public and Common Areas ! separated" means the area is enelesed Residential Areas. All enclosed apartments by the doors of which are kept eh- and condominiums which are to the public closed ingress and egress, access or to unrestricted access by the a ventilation residences of such areas. system which allow the circulation of air C. Motor Vehicle Us Employment. In motor from a smokin a smoke-free area. vehicles which meet of the following criteria: "Smoke" or and includes the 1. Common for public transit; combustion of any 2. Vehicles for vehicles which material, a lighted pipe, cigar or lighted contain a between passen- cigarette of any of such material gets and the in a pipe, cigar or cigarette kind, or any 3. which are operated in the course of similar article in any manner use of more than one person at "Smoke-free area" means any in which a time, the time of employment. smoking is prohibited by this D Motel Guest Rooms. The enclosed "Stand alone I~ of at least fifty percent of the guest rooms which serves alcoholic beverages pursuant in a hotel or motel. To the greatest extent 42, type 48 or type 61 license issued by thc smoke-free rooms shall be grouped nia Alcoholic Beverage Control Department, or together and separated from rooms where smoking other type of license issued by as permitted. age Control Department, the terms of which E. Stadium and Sports Facilities. The seating minors from entering on ~ is eating areas of any outdoor stadium or sporls physically separated from other uses in same Smoking may be permitted only in specified building, areas which are not located in close to seating or eating areas. (Ord. 164/ § area inside of a building which one of the I (part), following criteria: 1. Physically separated from area 10.2~.0S0 and has a separate ventilation . or Smoking is locations: 2. Located in a separate A. Stand area and which has an smoking area B. Bars lounges connect_ed_ to other ventilation system. § I (part), 1994) uses where the bar lounge meets the . standard for authorized : area; 10.25.040 Gene~i prohibition. C. Private residences, where State or Smoking is p~6hibited in the following areas Federal law located within.Jlte City except as provided in Sec- D. Retail tobacco stores sell primarily tion 10.25.057: ' tobacco products; A. Buii~ngs and Structures. Ail enclosed areas E. Meeting and banquet rooms w'lfixch meet the of buiidi/~gs which arc open to the public or which standard for authorized smoking area in l~stanrants, are plea'es of employment including, but not limited hotels, motels and other places of assemb't~ which to, ~ft'ice work places, waiting rooms, restaurants, are being used for private functions, such as~ingo .s, educational facilities, transportation facilities, 10.25.050 g ,.mn. es, when the person who reserves the place x ,ing this chapter of the appropriate provisions to have smoking allowed; of. (Ord. 164'/§ I (part), 1994) Outdoor areas of restaurants; On a stage in a theamr during a 10.25.090.. Penalties. where a performer is smoking Any person who violates any of this is part of the performance; chapter shall be, of an punishable H. property owned or used by other as provided ~ode. agency Which is used for (Ord. 1647 § I mi (Ord. 1647 § 1 (part), 10.25.110 to be 10.25.060 prohibited, more for any person to take ~ retaliato- Nothing in this c hall be con- ty action any person who asserted a structed to or prohibit a plx~perty owner right to a from or enforcing any regu~xtion con- sions of this (Ord. 1647 § (part), 1994) on their property that cxcbe~s thc regn set forth in this chapter. (Ord. ~61 10.25.070 notiee~ A. of not less than one inch in international "no smoking" symbol ration of a burning a red circle with a red bar across it) sufficiently and conspicuously posted ~.very building or other place where smoking is provisions of this chapter by operator, manager or other person having such building or othcr place. B. In any where is partially I be placed in the lobby or in phce entrance to the building prohibited in the building ated as smok- ing areas. C. Movie shall indicate the movie screen prior each feature motion that smoking (Ord. 1647 § 1 1994) 10.25.080 Enforcement. by the or his/her Any citizen, ' initiate enforcement with t ager. his/her designees. Any owner, of any establishment regulated by '-- ; right to inform persons violat- 254 lO.4B.OlO two or more families, each unit with similar and "Sound" meam a rapid variation in air pressure, · common access to the outside, which, because of its magnitude and frequency, can "NCO" means noise control officer, be heard by a bnman with average hearing ability. "Nighttime" means periods of weekdays from "Sound level" means the maximum continuous or eight p.m. to twelve midnight, and from midnight repeated peak value measured by the use of a sound to seven a.m., and periods on weeke~.ds from six level me,er and the "A" weighting network, as spec- p.m. to midnight and from midnight to nine a.m. ified in American National Standards Institute speci- "Noise" means any sound which annoys or dis- ficafions for sound level meters (ANSI S1.4 - 1971, turb~ humans or which t-a,~es or tends to cause an or the latest revision). The reading obtained in deci- adverse I~ychologicai or physiological effect on beis is designated dBA. If the meter response char- bnmans, actefistic is not indicated, "SLOW" response shall "Noise Conm)l Officer (NCO)" means the munic- be used. ipal agency, department or individual having lead "Sound level meter" means an instrument which responsibility for implementation and enforcement includes a microphone, amplifier, RMS detector, of this chapter, as desigv*~d by the City Manager integrator or time averager, output meier, and a~.d approved by the City Council. weighting networks used to measure sound levels, "Noise disturbance" means any sound which: and meets American National Standards Institute 1. Evdangers or injures the safety or bxalth of specfficafion S1.4 - 1971, or l~'t revision, for b-mans or a~i-~als; or Type 1, Type 2 or Type 2A opemion. 2. Annoys or disturbs a reasonable person of "Weekday" means any day, Monday through. normal semitivities; or Friday, that is not one of the holidays. 3. Endangers or dnmageS pe~0nal or real prop- "Weekend" means Sattlrdays ~ S~lldays that erty. are not holidays. "Noise level" means the same as sound level. "Vehicular deliveries or pickups" means the "Nonresidential area" means land zoo. ed for other delivery or pickup or the arrival for the delivery or than residential uses, such as commercial, profes- pickup of goods, wares, merchandise and waste sional office, indnsuial or public, as defined in the material by the use of motor vehicles, including, but zoning ordinance, but not including public rights-of- not limited to, the operation of motorized commer- way. cial ground-sweeping or wasie-removal machinery, "Person" meam any individual, association, part- whether potable or self-propeilecC (Ord. 1871 (pan), nership, corporation, or public agency, and includes 2001) any associated officer, employee or depumnent. "Property houndmy" means an imaginary line 10.48.011 Notice of violation. along the ground surface, and its vertical extension, Except in the case where there is clear evidence which separates fl~e real property owned by one that a person is acting in good faith and with all person from that owned by ano~er person, deliberate speed to comply with provisions of this "Public ama" means any property or -~huctures chapter after a verbal or wilton warning of a viola- thereon wi~ich are owned, utilized, orcontroIled by tion, the continuing violation shall be cause for a governmental emity, either a dt=~ion, complaint, or an ahaiement order "Public fight-of-way", means any street, avenue, to be issued by the Noise Control Officer, or other houlevard, highway, parkway, alleyor similar place responsible official. (Ord. 1871 (paR), 2001) which is owned or controlled by a governmental 10. ~4V. ~70 entity. ~ Violation---Penalty. "Residential area" means re~denfiaily zoned land Any person who violates the provisions of this as defined in th~ commlll~lty zol~lng OlT~ma~ce. 267 ¢c~,~os~) .08.260 bicycle mute, and otherwise regulating the location property has been designated by the City Council and use of vehicles and bicycles with respect to and posted as a "No Skateboarding or Roller Ekat- them, so long ns the same are consistent with this lng Area." The following is established as a no chapter. Before such a sign is erected, the subject skateboarding or miler skating area: bicycle route shall be designated on such streets by Civil Center Plaza (city hall/library). (Ord. 1767 an approved sign, or in such other manner as the (pan), 1997) City Man%oer determines will provide sufficient notice of tho existence of such bicycle mute. 11.08.280 ¥iolatio~Penaity. Any person who violates any of the provisions of DZS~ON&?iOn OF mCVC,.V-aovr~ ttfi$ chapter is guilty of an infraction, and, upon s~rea ~t~,_~ s~ conviction thereof; shah be punished as pwvided in Chapter 1.12 of this code, except that no fine im- st~v~ csn~ P.~ ~d~.nsn ,. So~h ~ ~ ~o~ posed for violation of any licensing and regisnation Cr~k aoui~v~ pmvisious Of this chapter shall exceed f~ dollars. ~ ,,~ ~ ~,o ~ A~,n* a~h (Ord. 1767 (pa~t), 1997; Ord. 1420 (part), 1987) LnI~ ~et Ma~ Avmn~ m Ansm Way ~ Driv~ to V~y Gm~ Dr~ V~J G~ D:tv~ to Z~j D:tw ~amm D:tve ~ D~w to ~zt Avmue ~,~ A~m:~ to ~ Avm~ Both .m,,,l~y Driv~ to Troy Way Bolh Troy Way to P,o&isum Avenu~ B~h Psi~ Av~u~ Bia~y A~nu~ to Poml Avmu~ Bmh Tanms Avenue S~ns Creek Boulovani to Bmh Bandmn Awnue lhmg~an Avmu~ Tanmn Avmu~ to Smlin~ Bmh (Ord. 1872, 2001; Ord. 1864, 2000, Ord. 1739, 1996; Ord. 1731 (pan), 1996; Ord. 1420 (pan), 1987) 11.08.270 Prohibition of skateboarding and roller skating. It is unlawful and subject to punishment in accor- dance with Section 11.08~.80 of this chaplin', for any person utilizing or tiding upon any slants-board, miler ~tn,__,.s or any similar device m fide or move - about in or on any public pwperty when the same 296 11..32.010 Chapter 11.32 street Limits De Anza Boulevard From the South City Limits to the TRUCK TRAFFIC ROUTES* North City Limits, all portions cur- rently or hereafter within the City Limits. Sections: Foothill Boulevard From McClellan Road to Junipero ~erra Freeway (Route No. 280), all 11.32.010 Definitions. portions currently or hereafter 11.32.020 Routes--Established--Signs. within the City Limits. 11..32.030 Routes--SignsmComplianee. Homestead Road From Stevens Creek Freeway (Route SS) to Lawrence Expressway, all por- 11.32.040 Authority to require weighing of tions currently or hereafter within the City Limits. vehicle. Proneridge Avenue From Wolfe Road to Tantau Avenue. 11..32.050 Unrestricted highways=- Stevens Canyon Road From the South City Limits to Interstate trucks. McClellan Road, all portions cur- tently or hereafter within the City 11.32.060 Truck trnffic--Origin and Limits. Stevens Creek Boule- From the West City Limits to destination points, yard Foothill Boulevard and from V.~t I 1.32.070 Exceptions--=Pickup or delivery. Valley Freeway (Route No. 85) 1o the" 11.32.080 Exceptions--Types of vehleles. ~ast City Limits, all portions cur- rently or hereafter within the city 11-32.090 Violation--Penalty. limits. Tanlau Avenue From Stevens Creek Boulevard to Homestead Road. * For provisions teJardinsz the pickup or delivery of good~, ~ee Wolfe Road Stevens Creek Boulevard to Home- Ch..-t~4~of this code. stead Road. 11.32.010 Definitions. B. The City Engineer is directed to designate For purposes of this chapten the above-named truck traffic routes by the erec- A. The term "truck" means any vehicle as tion ofappropriate approved state standard.signs giving notice to the ordinance codified in this defined in the Vehicle Code of California, or as chapter. (Old. 833 § 3, 1977) hereafter amended, that exceeds a gross weight of three tons and has a total combination ot' motor I 1-32.030 Routes--Signs--Compliance. truck, truck tractor and/or trailers of sixty, feet or When authorized signs are in place giving less in length, notice of designated traffic truck routes, no per- B. The phrase "interstate truck" menns any son shall operate, drive, or cause or pe,,,it to be vehicle as defined in the Vehicle Code of Califor- operated or driven a truck as defined in Section 11.32.010 of this chapter on any street or streets nia, orashereafteramended, that exceeds a max- within the City other than on a truck traffic imum gross weight of three tons and has a total route, except as otherwise provided in this chap- combination o£ motor truck, truck tractor and/ ter. (Ord. 833 § 4, 1977) or trailers that exceeds sixty feet in length. (Ord. 1267 § 1 (part), 1984: Ord. 833 § 2, 1977) 11.32.040 Authority to require weighing of vehicle. 11.32.020 Routes--Established--Signs. Any peace officer having jurisdiction within the City, or acting under its authority, shall have A. The following truck traffic routes within the authodty to require any person driving or in thc City are hereby established for the movement control of any vehicle as defined in the Vehicle of any truck as defined in Section 11.:32.010: Code of Califoruin, or as herea~er amended, not proceeding over a truck traffic mute to proceed to any public or private scale available for the 337 13.04.110 13.04.110 Park and/or building permitM injure or impair the natural beauty or usefulness Revocation. of any areas; The City IvianaEer shall have the authority to (3. Climb any tree or walk, stand or sit upon refuse a permit upon a finding that any use or any monuments, vases, fountains, railing, activity is in violation of the 'provisions of this fences, or upon any other property not desig- chapter, or any other ordinance of thc City, or of hated or customarily used for such purposes; any rule promulgated hereunder, or upon good H. Hunt, molest, harm, frighten, kill, trap, cause shown. (Ord. 531 § 11, 1972) chase, tease, shoot or throw missiles at any ani- mal, reptile, or bird; nor shall any person remove or have in his possession thc young of any wild 13.04.120 Use of park property, animal, or thc eggs or nest or young ofany reptile No person in a park shall do any of the follow- or bird. Exception to the foregoing is made in ing: that snakes known to be deadly poisonous, such A. Wilfully mark, deface, disfigure, injure, as rattlesnakes, or other deadly reptiles may be tamper with or displace or remove any buildings, killed on sight; bridges, tables, benches, fireplaces, railing, pay- I. Use any system for amplifying sounds, ing or paving material, water lines or other public whether for speech or music or otherwise, unless utilities or parts or appurtenances whatsoever, an exclusivc use permit is first secured. (Ord. 531 either real or personal; § 12, 1972) B. Litter, soil or defile .restrooms. No person over the age of six years shall use restrooms and 13.04~130 Behavior of persons in parks. washrooms designed for thc opposite sex; No person in a park shall do any oftbe follow- .... C. Dig or remove any soil, rock, stones, trees, ink shrubs or plants, down timber or other wood or A. Bring to a park any alcoholic beverages, materials, or make any excavation by tool, and no person may drink alcoholic beverages at equipment, blasting or other means or agency. It any time in a park.l}/icknickers may bring to a e~(¢ ~P~ 1~" isunlawfultogathcrfirewoodortocollcct within park, and drink, beer or wine with their picnic the park any type of plant material for the pur- lunches, so long as they conduct themselves in an pose of building a campfire; orderly manner, D. Construct or erect any building or struc- B. Enter or remain in a park while under the ture of whatever kind, whether permanent or influence of intoxicating liquor or any drug; temporary in character, or run or string any pub- C. Have brought, or have in his possession, or Igc service utility into, upon or across such lands, set off, or otherwise cause to explode or discharge except on special written permit issued under or burn, any firecrackers, torpedoes, rockets, or this chapter;, other fireworks or explosives of inflammable E. Go upon any lawn or grass plot, where material, or discharge them or throw them into prohibited by the parks and recreation depart- any such area from land or any highway adjacent mcat, and where such prohibition is indicated by thereto. This prohibition includes any substance, proper and legible signs; compound, mixture or article that, in conjunc- F. Damage, cut, carve, transplant or remove tion with any other substance or compound any tree or plant, or injure the bark, or pick thc would be dangerous from any of the foregoing flowers or seeds of any trec or plant. Nor shall any standpoints; person attach any rope, wire, or other contriv- D. No person having thc control or care of ance to any tree or plant. No person shah dig in, any dog shall suffer or permit such dog to enter or - or otherwise disturb any ~rass area, or in any way remain in a park, unless posted for such use, and 350 13.04.150 roadsorparkingareas, orsuch otherareasasmay 13.04.170 Picnic area use restrictions. be specifically designated as temporary parking No person in a park shall do any of the follow- areas by the department of parks and recreation; ing: E Park a vehicle in other than an established A. Picnic or lunch in a place other than one or designated parking area, and such use shall be designated for that purpose. Attendants shall in accordance with the posted directions them, have the authority to regulate the activities in and with the instructions of any attendam who such areas, when necessary to prevent congestion may be present; and to secure the maximum use of the park G. Ride a motorcycle, motor bike, or similar facilities for the comfort and convenience of all. vehicle in any park, except where used to trans- Visitors shall comply with any directions given to port invalid persons; achieve this end. Individual fireplaces or tables H. Ride a bicycle on other than a paved road and benches shall be used on the basis of"first or path designated for that purpose. A bicyclist come, first served"; shall be permitted to wheel or push a bicycle.by B. Use any portion ofthc picnic areas, or any hand over any grassy area or wooded trail, or on of the park buildings or structures t~or the purpose any paved area reserved for pedestrian use; of holding picnics, to the exclusion of other per- I. Ride a bicycle other than on the righthand sons, and no person shall use such area and facili- side of thc road paving as close as conditions ties for an unrrasonable length oftime ifthey are permit, and bicycles shall be kept in single file crowded; C. Leave a picnic area before a fire started or when two or more are operating as a group. Bicyclists shall at all times operate their machine later used by him is completely extinguished. with reasonable regard to the safety of others, (Ord. 531 § 17, 1972) signal all turns, pass to thc left of any vehicle they are overtaking and pass to the right ofany vehi- 13.04.180 Advertising and sale restrictions. cles they may be meeting; A. No person in a park shall, without prior J. Ride any other person on a bicycle, except 'permission from the City Council, do any ofthe where the bicycle is built for operation by more following: than one person; 1. Expose or offer for sale any article or thing, K. Leave a bicycle in a place other than a nor shall he station or place any stand, cart or bicycle rack where a bicycle rack is provided and vehicle for the transportation, sale or display of there is space available; any such article or thing; L. Leave a bicycle lying on 'the ground or 2. Announce, advertise or call the public ..: paving, or set against trees, or in any place or attention in any way to any article or seceice for position where other persons may trip over or be sale or hire; injured by it. (Ord. 531 § 15, 1972)' .3. Paste, glue, tackor otherwise post any sign, placard, advertisement or inscription. B. In addition, in order to insure the public 13.04.160 Swimming restrictions., safety, health and general welfare, no person No person in a park shall swim, bathe, wade in . .sh~l expose or offer for sale any article or thing, or pollute the water of any fountain, pond,'lake ' nor shall he station or place any stand, cart or or stream, except that wading and swimmin~ vehicle for the sale or display of any article or shall be permitted in pools specifically provided thing, on a public street, within one tho~_e'_nd ~i~c h v,~l~irer~' for these purposes, and so posted. (Ord. 53 i § I6, feet in a suaight line from the nearest boundary 1972) of any park. (Ord. 531 § 18, 1972) 352 14.12.130 14.12.130 Appeal--Hearing. Any person aggrieved by an act or determination of the City Manager in the exercise of the authority ' herein granted shall have the right of appeal to the City Council, whose decision, after public hearing of said matter, shall be final and conclusive. (Ord. 125 § 14, 1968) 14.12.140 Violation---Penalty. Any person violating Sections 14.12.085 or ~/~, IS. ~' 14.12.090 or otherwise removing, or wilfully dam- aging or destroying any tree or shrub in any public right-of-way without obtaining the permits provided for in this chapter shall be guilty of a misdemeanor and upon conviction thereof shall be punished as provided in Chapter 1.12. Any person who violates any other provision of this chapter shall be guilty of an infraction and upon conviction thereof shall be punished as provided in Chapter 1.12. (Ord. 1731 (part), 1996: Ord. 125 § 15, 1968) 376- 14.18.020 B. "Owner" shall include the legal owner of rca] property within the City, and any lessee of such owner. F. "Person" shall include an individual, a finn, an association, a corporation, a co-partnership, and the lessees, Irnstees, receivers, agents, servant~ and employccs of any such person. G. "Privalo propezty" shall include all propexty not owned by the City or any other public agency. H. "Public prope~y" includes all property owned by the City or any other public a~ency. I. "Specimen tree" means any of the following: ~ 2. A tree required to be protecl~l as a part of a zoning, le~*~ve map, use permit, or privacy protec- tion requirement in an R1 zoning di~hlct. Species Meamr~nmt From Si~ie,.Trm~ DJ*m- Multi-Trm~ Dim~e- Natural Grmie e~r/Circumfer~ce ter/Cir~*mferenee Native Trees: Oak b-ecs 4-1/2' Iff' (31") 20" (63'") C~fomia Buckeye 4.-1/2' 10" (31') 20' (63') Big ~ Maple 4-1/2' 12" (38') 25' ('/9") Deodar Cedar 4-1/2' 12' (38~) 25' (79') Blue .~m,,=, Cedar 4-1/2' 12' (38') 25" (79) 14.1 g.020 ._ L "Tree removal" means the destructiou-~ his/her use at his/her discretion in order to obtnin twen~-~~ent or more ~mo. nth the retention objection. ~,Ov/'/(,i~l~ pefi~)of~ hy ~ag~'~Imentreebycu~ng, C. Privacy protection planting in Ri zoning &~-~.c.k/h~g retarding, g'~..~Ria , or ap~y~g~hemicals. (_Ord. districts shall be maint, lned. Landscape planting ~, 1999; Ord. 1810 (pKrt% 1999; Ord. maintenance includes irrigation, fertilization and [715 (part)~ 1573 ~3, 1991: Ord. 1543 pmningas necessary toyi¢ld agrowth rateexp~ctod § 3, 1991) for a particular species. Where privacy protection planting dies it must be replaced within thirty days 14.18.030 Retoufiun promoted, with the location, size and species described in Heritage and specimen trees are considered an Ordinance No. 1799 (privacy protection) and its asset to the community and the pride of ownership appendix. The affected property owner, with privacy and retention of these species shall be promoted, protection planting on their own lot, is not required The Director of Community Dev¢lopmeat shall to maintain the required planting. (Ord. 1810 (part), conduct an annual review of the status of heritage 1999; Ord. 1630 (part), 1993; 1543 §§ 4.4, 4.5, trees and report the findings to thc Planning Com- 1991) mission. (Ord. 1715 (,part), 1996: Ord. 1543 § 4.1, 1991) 14.18.070 Recordation. Heritage and specimen uees required to be re- 14.18.040 Desigaatioa. rained under Section 14.81.020 I2, except for trees The Planuing Commission, may, by resolution, on public pwperty, shall have retention infommion designate a u'ee or grove of u~.es as a beritage placed on the property deed via a conservation tree(s). Prior to adoption of such a resolution, not easement in favor of the City, private covenant, or '-- less than ten days' written notice shall be deliver! other method as deemed approp~te by the Director. to the owner. If the owner of the property pwtests The recordation shall be completed by the property the designation an appeal can be initiated. (Ord. owner at the time of use permit, zoning, tentative 1715 (part), 1996; Ord. 1630 (iron), 1993; Ord. map or initial/new building permit issuance. (Ord. 1543 § 4.2, 1991) 1573 § 4.6, 1991: Ord. 1543 § 4.6, 1991) 14.18.050 Heritage tree list. 14.18.080 Identification tag. A heritage tree list shall be created and amended Heritage trees shall have on them an idenfifica- by resolution. The list shall include thc reason for fion tag, purchased and placed by the City, inscribed designation, mm circumference, species name, corn- with the following information: mon name, location and heritage tree number. (Ord. 1543 § 4.3, 1991) CITY OF CUPERTINO HERITAGE TREE NO. 14.18.060 Plan of protection. Please do not prune or cut A. The Plmming Commission shall consider a before contacting the City. plan of protection developed by the Community DevelopmentDepanmontoraCity-retalnadcertified (Ord. 1543 § 4.7, 1991) arborist. The protection plan shall include informa- tion for correct pruning, m*inrep*nce and fertiliza- 14.18.090 Application to remove. fion methods. If an application for heritage tree removal is B. It shall be thc property owner(s)responsibili- submitted, the request shall be forwaniod to the ty to protect the tree. The plan shall be provided forplanning Commission for review and approval. It is the applicant's responsibility to provide supporting 378-3 .l. "Tree removal" means the destruction (in a twelve month period) of twenty-five percent or more, as dete,mined by the Community Development Director, of any heritage or specimen tree by Cutting, retarding, girdling, or applying chemicals. 17.3Z050 _ sianted by the Director if the project has not been building elevation facing an adjacent public street; completed. (Ord. 1624 (part), 1993) provided, that a freestanding sale/rent/lease sign as described in subsection C of this section is not 17.32.060 Residential real estate signs, displayed concurrently on that public street frontage. A. Real estate signs shall be permitted in all Such sign shall be restricted to thirty-two square feet zones for the puq~osc of announcing house sales, of face area, and shall be located and displayed in rentals and open houses, accordance with the provisions of Sectiou 17.24.080 Or rCfx~' B. On-Site Requirements. Each parcel with a of this title regarding clearance, obstruction and unit for ~l¢[is permitted one sign per street front- roof-line line level. age, with a maximum of two signs per parcel. Only E. Signs for purposes of sale, rent or lease shall one sign may be building-mounted. Each sign is be permiset_ for display off site. Display of such limited to four squnre feet per side. Freestanding off-site signs shall be confined to private property, signs shall not exceed six feet in height and shall be subject to the approval and cooperation of the proW subject to the requirements ~t~,,~ in Section erty owner upon whose property the off-site sign is 17.32.010. to be located. Such off-site signs shall be limited to C. Off-Site Signs Announcing House Sal~ or one sign per/,ueet f~ontage, with a maximum of two Rentals. Signs located off site aunoun¢ing house signs per off-site parcel. Such off-site signs shall sales or rentals are subject to the same requirements have a maximum of two faces, and shall not exceed as on-site signs as stated in Section 17.32.060B and thirty-two square feet in area per face, nor exc_~_~_ Section 17.22.110. ! '/. ~ 2.060 a height of six feet. The location of such off-site D. Off-Site Open House Si~t, nz. Bach parcel with signs is subject to Section 17.32.010. a unit for ~ale is pennitmi a maximum of three F. For sale/rent/lense signs may be installed up '- open house signs subject to the requirements stated to thirty days prior to any tenant vacancy. Immedi- in Section 17.32.010. ately following the close of sale, rent or lease of the E. All open house signs shall be removed by space or building the sule, rent or lease sign shall be sunset. (Ord. 1720 (part), 1996; Ord. 1624 (part), removed. 1993) /3. For sale/ten,lease signs may not reasonably obsUuct the visibility of any pennanunt ground sign. 17.32.070 Sale, rent or leasing signs. (Ord. 1720 (part), 1996; Ord. 1624 (part), 1993) A. Sale, rent or leasing signs shall be permitted in all zones except residential zone~. Signs for resi- 17.32.080 Subdivision directional signs. denfial zones ate ~tat~ in Section 17.32.060 of this A. Subdivision directional signs for develop- chapter, meats within the City may be pemaitted in all zones B. Such signs may include the name of the teal other than residential, to direct customers along the est=t~ agent or owne~, the address, phone number most direct route through the City. Subdivisions not and any other pertinent information, in Cupertino shall not be permitted subdivision C. Each parcel shall be allowed to display one directional signs. sale/rant/lease sign on each public sueet frontage. B. A total of three such signs per subdivision Each sign face shall be limited to thirty-two square shall be penuitted within the City as determined by feet, with a maximam of two face_-$ per sign. Each the Director. sign shall be limited to a height of six feet. 'V" C. Each sign shall not exceed six feet in height shaped signs are prohibited, and thirty-two square feet in area and have no more D. A building mounted sale/renVlease sign may than two sign surfaces. "V" shaped signs are prohib- ..- be used in lieu of a freestanding sale/rent/lease sign. ired. One building mounted sign may be placed on each 499 (%-~ 'm ~'~ 19.28.050 S~on 19~8.~C Al, but ~t 1~ ~ fiv~ ~u- h~ght ~s ~d p~va~ c. For ~ ~ ~ g~m ofl~ 19.2L060 second floor, windows w~th pgrmanent, ~xtcrior plane of a fu~t-smry m~Ufion t~ pla~.~l closer man louv~ up m six fee~ above the flnisl~d _~_~_~_n~. ~ f~e~ ~o any propmW linc. floor, and obscur~, non~openabic windows a~ no~ C, A~.~.~urtl f~up'.~ (not hlglud~g p~l:lo r~.ui:~ to pmvid~ priv;tcy promaion ptantins, coven) mt)* ¢*_*___,md into a required yard a distance f. lvi-~nt~-,~ce '1~: required plen~s shall be not ezcccding th~c fern. provided thg no ~uchi~c- clede~ irr~oa, J~iliz~on md prun~ es ueces- pogion of z p~cip~ or eu~iliar~ mucuu~, may ~ to yield a Smwth nrc ~xpe~cd for a p~rlicu~ cxtend ci0ser than ~ fce~ ~ any pmperW lin~. species. W~__p~ n~lUircd pl~n~tl~ di~s it must b~ (O~L 156~ ([~rt), 2O01: Ord. 1~) § 1 (pLy0, 2000: rep~acc~ within ~irt~ days with thc size and spcc~Ord. 1~34 (p~), 1999: OgL I$0S (p~0, 1999; Ord. a~ described in Aippendix A of Uds ~ ami an 1515 (Mut), 1993; Or~. 1601 ~ A (]~t~), 1992) u~_~?_~ p~mfin~ t~m shall bc provided M ~l~ Com- munity D~v~loprnent ]3~pmm~rlL The ~t'ec~d 19.~.080 Exceptions for pre~-iptiva design !~. (O~t. ~S~ ~, ~1: 0~. 186~ ~ ~ ~ ~ ~t ~ ~ ~ ~- ~), 1~: ~ 1~8 '~), t~ ~ ~ ~ 1, ~ I~.0~ 1993; 0~. 1601 ~ ~ ~), 1~) ~t ~~ w~ ~ ~ m~ ~ ~v~ 1~0 Pm~tm,t ~d e~~. ~um~ ~c ~ cop_~c~ ~ u~ ~ ~ may ~ ~ y~ ~ ~s~ ~e ~ ~k may m~ if ~ o~r ~ ~ ~ ~m ~ ~ ~v~ ~ ~ ~or ~a~m~ ~ 2. ~~e~ll~t~- for ~ Hfe ~ ~h ~ ~s ~ ~li~ m ~ ~ ~ ~ ~, ~ ~ ~if~. ~ d~:r ~o*~ ~ ~r ~ ~ ~ 4. I 588-12.5 /'~ -37 19.4~.010 Cha~,ter 1!1,,48 private common open sl~_-= (Oni, 1601 P~ D~OP~ (PD) ZO~ 19.~.020 Appli~bflity o~ ~010 ~u~o~ ~ ~ild~g or s~c~ sh~l 19~0 E~bli~t of ~ p~ d~a~ ~ 19.~0 ~n~p~ d~elop~t pi~ ~. (~. 1~ ~. A ~), 19.~0 .A~on b? ~e P~ing Co~on. 19.~.~ . ~ii~m~t of d~ 19.~ go~ or p~n~A~on ~d ~d mndifi~ai b~ ~e Gty Co~aL ~ ~ d~clo~ 19.~0 U~ ~t req~ m~i~, m~ ~ ~ De~e d~e~t plan. m~, ~ ~ m~l~om ~i~e 19.~ A~on b~ ~e ~p Revi~ ~~ ~ may ~ by ~e Ci~ t~dl. a ~c ~ m ~ ~t m ~~t of ~ ~ ~ g ~ ~dm~ wo~d ~ ~d '~)." ~ ~ ~ ~ ~ ~ ~R~, dis~ w~ ~ ~ d~ ~11~ ~ ~a~ ~ ~ v~ ~ ~ D. ~g~ ~ ~ a PD ~ ~ ~t ~u~ ~ ~ ~d (~)~g~s~tm~~ ~m ~ s mo~ ~ a~ ~ uM of o~ ~mM ~ ~ 8~1 ~ct ~Ul~ D~-NSE,"Y BONUS project applicadon. ~o~ ~ Ap~fl~ p~ ~ ~ p~ ~~t of ~ C~. " ~y ~~s),m t~of ~ S~ ~ ~ hw. ifi~~~gf~~h~- I. ~ut mb~ h~h~ ~u for ~ -.~ ~!~*. ~ Iow ~ Im~o~ or ~ ~t ~ not ~m¥~t of ~ ~ho~ f~ h ~n ~ ~ for S~ ~ ~ hws ~g s~ ho~g "~" ~s a b~n~t ~ ~ ~ ~ of ~ ~. B~ ~y S~e~ ~ S~ 501~. (~. 1569 ~ 1 ~). ~, ~t ~ not ~ ~, ~ ~u~, 1~1) ~ons. A. ~ h~E ~vd~ ~ ~ five 1. Reduction of park dedimition fees, F. For purposes of calculating a demity bonus, 2. R~tuction of api.~licatkm or conscmcttm~ the residential trails do not have to be based upon permit f~_~, individual subclivisiou maps or parcels. The 3. Provision of tax-exempt t'mancing or other bonus shall be permiffr, d in geographic, areas o[ the financial assista.,lce as approved by thc City COmlcil; housing development othc~ than ~ areas where thc C. A housing dev*4opment which provides al- affontable units arc located. fordable units must show that th & requestsd conces- (~. Tbe developer shal. 1 subnfit e pwject financial sions dir~tly &e'fcct the economic feasibility cf ~port (pro forroa) to allow the City to evaluate the including thc affordable units in the proje~. (Ord. financial need ior the Stam-mandeted additional 1~69 ~ I (pan), 1991) incentives, Tn*- City may relain a consultant to view ~c f*L*tancial rmpo~ Tbs cost of thc consultant I~2,0~0 General requirements, shall be borne by thc developer with the following A. ANordab~ units must remain affordebie for exception: thirty yeass if both a density bonus end an addit/~n- 1. If the aPPlicant is a nonprofit organization, al conc*_sgon are ~ranted. These units shaJl se, nmin the cost of ~e cmisullant may be p~id by the City affordehle for a lo~er period of tin~ if required by upon prior approval of thc City. Council. (Ord. 1 $69 the conmuc~ion or mor~a~ f~socing assistance § I (part). 1991) pro~rm11, mo~a~e insunmcu l:i'o~'am, or ren~ subsidy program. If only a dsnsiry bonus is grooM. 19,q2.O60 Requirements for projects with the affo~,~ble units shall semen affordable for leo affordable units, y~rs. A. All affordable units shall be occupied by the B. Rm priority for the: affor~_ I~ units will be household type sl~cified in thc wrieen given to individuals who ruide, work, go to school, required uader Section lg.'~2.120C. Thedevelop~r's ,..-- or have family in die CiPy of' Cupertino. cbli,~_~!~n to maintain these units as affordable '..'" C. A master regulatop/agreement shall bo made housing shall be evidenced by tl~ master rcgulatopy between thc developer and the CRy which indicates agreement which shall be recorded as deed rostrk- the household type, num~-, location, size md co~- tion running with tl~ land. slmclion scheduling of all atTordable trusts, and such B. Those units tergeted for lower-income house- information as shall be requi~ad b.y the City for the holds shall b~_~t'fordable at a rent tbs* doc~ nm purpose Of determining thc developer's compliance exce~ twenty-fi'~t~t~nt of th~ HUD income with this chapter, limits for lower-income households for Santa Clara D. Affordable units in a project and phases of a Count)' adjusted for household sL~. pro~c~ almli be constructed concurrently with or C. Thos~ Onits Yarg~ir~ fo~ ~ lo(v-inc0~/~ prior to the consuoction of mar~.t, rate units, households shall be affordable a~ a ren~ that docs not E. Affordab~tmitssha]lbepmvidextasfollews: exceed twc~ity-five percent of the HUD income I. Affordableunitsshallbedisporsedthmughout limits for very low-income households for Santa thc project; Clara County adjusted f~r household size. 2. Affontable units shall be ide~al ~,ith the D. P~ior r.o the t'ental of any affoadable unit. the design of any nmrket rote ~ntal m~its in the proj~ City or its desiguee, simll verify the eliJibility ct'the with the following ex~ep~iun: i~ospeotive tenani. Th~ owner shall obtain and a. Redu~tion of inte~ior amenities for affordable maintain on rite cettir~ations by each house, hold. units will be permitted upo,.~ prior approval by the Certification shall be obtained immedia~ly p~ior to City Council as ne~,ssary to rmin project afford- inilial occopan~ by each household and annually ability, thereafter, in the form provided by the Citl, or its d~si~n~e. The owner shall olxaln updated forms for cc~p~d~ s2-~ 588-34 19.$0.030 a. Ground lev~d pavia,, landscape re. atm,, and 2. With zv. spcct to d~-k,.,~ accessory build- open ~c,~uional facilities are excl-~,,4 fra~_ lot inSs~sm~ctm~s (including an F,2 zoning distriot): covera~ re~ulaticas, a. The maximum lot oovcras~ is thirty percent b. A~I site de~..lol)ffP, n! mgulatimls, inclt~s at' thc us~abk roa~ yard ama~ s~tMcks, heiibt md lot c~ve~ag~ mg-ls*fons ~pli- b, 'X~ m~um d~mnG¢ ~rom a princ~pg cable to principal dwetlinss in th~ applicable zonedwelling is' fiw f~t (m~sured between th~ abo ~ovem ?ff~ acc~Ssoz~ I~s/stp,..cmres c, -qmell, pof~ablestomgebuild~ns~lessthansix e~.~pt as otheAvi~ ft:e.c~.~d bctow, feet in height, which er~ not atta~h~ to a building, c. They shill be stru~-'m**ully inte~'azed with theperm--*ut ~omtdafion. or pad. my be locat~ closer principal dwei]inL ~ five f~t to a principal dwellifl& but no closer d. UnencJose~ patio ¢ov~ nmy exmnd as clo~ thn tt~e feet from any property line: as ~n f~t to the'mar prol~ line, cl. No ,~,.,o~ a~.essory buiidin~ or su'ucm~e ¢. Att~ r~ Strdcmres wh, jch have shall be located less than thn~ feet from any propcr- a floor or st~p h~ght gmat~ ~ eighteen in~ ty lin~, 8bov~ any point uf tl~ adjoining ~ Fade, c. X~ta~hed a~:essory buikth~s nd m'uclu~ nust Imv~ a ,,,;,,~,~un s~.beck of ten feet from any shatt b~ 'limi~cl to a single story, and shall not l:~rope, rty lht~ _~__~ a height of seven feet be, gin~in,w at a thr88-~ooc sory b~;-~t'tt=t~.s which ar~ used solely for euc'ip~P,, tbe entire wall plane ~ t~ prop- nSricultux*ul 'u~ 8re nut ~clad as to I~igh~ e.,'ty line., including the roof, e~vcs, and any/zm:ion pro~ thax m**h buildings/slrdclu~ nx~ of n of the ~OWd-don visibl~ above the ~djoinin~ fro- _ g. F~'t-fi_,)~_. ~ and pmios, other than de- by ~_n__. foot for each additional oo~ and ooa-balf feat s~-il~l in s,~.~im Ble of this sectior~ may an- of satback (-ottestx~-g to a thixty-three-de~,ree croach to ~thin th~ faat of a i~'opetty line. angle), up to a maximum w~l plan~ he, bt of flf- ~ feet into fm ~t-yatd satber, ks, ordinance codif~ in this tide. Th~ maximmn hcight L A second-story ~..4=k or ~ may e. nm~m=h of constm~on shatl not _-_*__--_e~_ twenty fret, ~ fe~t into ~.. front setback for tl~ princil~l f. Wal~s which ax~ ~_- titan riva fact to a dwr. lRng. e.t~y ~ may not lmv~ windov4 or if windows a~ ' ,; ~ ,~-,d Jp nl.t'~, -,' -?,-tTfi9n 4¢- I~ ~.hat,tcr by haight alxw¢ tqv~ feet f~m tl~ floor, Tlds mquize- ~t .d' _.y, g. X~.hr~! ~r~ational bu~tdin~mucm~ k. The t~i~i,w~m sid~-~d setbacks for second- which haw a floor or st~p height f~*eater than ~igh- i. P'~__~_ f~ct in zu~idmiel zonu. Srade, must have a setba~ of ten fe=t fr~ any ii. Twenty ~ in aftricul~ so~. pmpe~. An affixed play smmur~, such as a ~ stm'y dec~ and t=afios ara: if it is at laast tb~sa feet from thc ln~pe~ line and i. Twenty f~t tn t-..sldmtial sones, if it ax~Ms tbe haights and s~tbar, ks as nxluized in -~,,,,'-, P,~ection, B2b and c of*~ section and me, e. ts one .~. of the two followin~ ¢oeditio, l*' It is adjacent to it 19.80.030 comer lax2perty line. or if not cm& corer, x, tho im- mr. diat=iy ndjae~nt prop.-t~ owne~ agrees to h. ~e ~;~ ~t-~ ~ for i. T~ f~ ~ ~n~d ~, a. ~ f~ h a~M~l Mm, i. W~ ~t to c~r I~, ~ s~ lot b ~j~t ~ 8 ~y h~ (O~. 1811 ~), 19~; ~. 17~ 1~I ~. A ~), 1~;:) to ~ ~mpl~ v~e~ ~ but ~ ~ ~on ~ ~ of ~ ~~is~Rd~ ~v~ ~si~ to ~j~h~ ~ i~ ~ I ~), ~ 0~. 1811 ~), 19.84.010 ~. Chapter 19.84 Cl. All accesses to secondary units shall be screened from a public street. SECOND DWELLING UNITS IN R-l, RHS, D. The r~oss building area of a second dwelling A, AND A-1 ZONES unit shall not exceed six hundred forty ~,nre feet of living space, exclusive of decks and garages. Sections: E. Lot coverage of all smictures, including sec- 19.84.010 Purpose. ond units, shall not exceed forty percent of the net 19.84.020 Applicability of regulations, lot area, except that in RI-IS zones lot coverage of 19.84.030 Site development regnlntions, all s~uctut~ shall not exceed thirty percent of the 19.84.040 Pnrklng. net lot area. 19.84.050 Occupancy.. F. A second d~veiling unit may be located on a 19.84.060 Architeeturnl review, second story, provided that: 19.84.0'/0 Nonconforming nmi illegul 1. Entry to the second dwelling unit is not pro= second dw,,nh,g nnlts, vided by an exterior staircase; and 2. In the opinion of the Director of Community 19.84.010 Pnrlmse. Development, thc second unit does not result in The purpose of this chapter is to promote the goal privacy inU'usion to adjoining dwellings; and of affordable housing within the City through pm- 3. It is attached to the primary ~sidence. (Ord. vision of additional housing in certain residential 1811 (pan), 1999; Ord. 1601 Exh. A (part), 1992) and agricultural zoning districts which would other- wise be prohibited in those districts, in a manner 19.84.040 Parting. which minimiTes adve~e impacts to neighborhoods. In addition to the parking l~:luirel~nts in the · .~ (Ord. 1601 Exh. A (pa~), 1992) applicable zoning district for a particular lot, one functionally intJepe~d,~t, pavcd, off-~'eet parking 19.84.020 Applienbility of reg, dnfions, space (uncovered) shah be provided for tho second Notwitkstnnding any provision of this title to the unit; provided, however, that the additional space contras, a second dwelling unit is pertnitted on lots shall not, in the opinion of the Director of Commu- in R-I, RHS, A and A-1 zoning disUicts, provided nity Development, dominate the front setback areas that in addition to complying with the site develop- of th~ lot in such a mnnner as to delligrate ment regulations specified in those districts for areas ~ed as landscape space. Impervious dwelling units, such second dwelling unit. complies surfaces may not exc_~__ ~ percent of the f~ont with thetegulatiuns contained in this chapter. (Ord. setback area (See Section 11.29.040 Ale). (Ord. 1601 ~ A (pe~), 1992) 1601 Exh. A (t~'t), 1992) 19.84.030 Site development rekndations. 19d~050 O,~__!lmncy. A. A second dwelling unit located un a lot con- Tbe",O~er of a lot which contains a .~nd talning less than ten thousand square feet must be dwelling u~,~ust reside either in the ~pal resi- ~tt~¢hed to thc principal dwelling and integrated dence or in the~,~ond dwelling. P~ef'to the issu- therewith except on A and A-I zoning districts ance of a building j)e~it for a~ond dwelling or which can have the second dwelling unit either the issuance of any occo¥~I,.~.-4.~ oruse permit for an attached or detached regardless of lot size. existing second dweil~ th~er shah record a B. All second dwelling units shall have dh'ect covenant or deed/~e~m'ction in' a ~ approved by outside access without going through the principal thc City Att~y setting forth the a~bed dwelling, occupan~requiremenc In addition, the bw~er of 588-:53 (c-~n~o ~.~) 19.84.050 owner is residing on the p~..,,~, t~.,~d, lt~t~l F~th. A ~), 1~.~ A~c~! ~ew. ~or to issu~ce of a building ~t for a s~- ~d dwell~g ~t, ~ D~tor of Co~uni~ ~vel~ment ~1 review ~ ~hi~ of ~ dwelling ~d ~1 ~: A. ~t ~e d~i~ of ~e ~ s~ond dwelling ~t is ~nsi~nt wi~ &e ~t~ of · e ~ci~l dweH~g; B. ~t ~ buRd~g ~s 0f ~ond ~t ~ co~ble wi~ ~e ~s, colin ~d t~s of ~ p~ci~ dwelling; C. ~t ~ p~ ~ond dwell~g ~t will not ~ ~cessive ~ w~ch is visible ~m' a public s~t ~ ~jo~g ~va2 p~y. (~. 19~.070 Non~o~ng ~d ~g~ ~nd A. A ~d dweH~g w~ch w~ c~c~ w~ch m~h2s ~d dw~gs ~ R-I, ~, A or A-1 z~g di~ but w~ch in ~fo~ wi~ a~licable sim ~velop~nt ~d b~g c~ m~fiom ~ eff~t at ~e t~ of co~ is g~ ~p~ 19.1~, N~f~in~ Ugs ~d F~fi~. ~. IHeg~ S~d U~. A ~d dwell~ w~ch w~ c~ wi~ut a ~lding ~t in co~ict wi~ ~ a~li~ble buRd~g m~l~s ~ ~e ~e of only ~ ~ ~n ~e o~ of such a ~t ob~ni~ a ~di~o~ ~ ~fit i~u~ D~t~ of ~~ ~elop~ (~. I~1 ~. A (~), ~2) /s. qq