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82-031 Lincoln Cupertino Associates, Limited, Resolution #5978 • /?. - „ WLTN GOV CY:I 6103 , RETURN TO CITY • OF CUPERTINO AGREEMENT H1.76FacE60a 70300 TORR AVE. Cu:ERyy INO, 9CqA�igQhi�t made and entered into this 15th day of T1S AGREI;N1;'NT --------- November --- November , 1982, by and between the CITY OF CUPERTINO, a municipal corporation of the State of California, hereinafter designated as "CITY" , and LINCOLN CUPERTINO ASSOCIATES LIMITED, a California Limited Partner ship, hereinafter designated as "DEVELOPER. " WITNESSETH _ WHEREAS, the DEVELOPER is the Owner of certain unimproved real property, located in the City, described on Exhibit A attached hereto, hereinafter designated as the "Property. " WHEREAS, the DEVELOPER has made application to the CITY for a building permit from CITY to -construct and maintain a commerical • building on the Property, hereinafter referred to as "Project. " WHEREAS, the CITY hereby agrees to permit DEFERMENT of certain required development improvements, hereinafter designated as the • "Deferred Improvements" , and defined in Exhibit B attached hereto, in accordance with the provisions of this AGREEMENT; and WHEREAS , the DEVELOPER hereby agrees to provide necessary im- provement plans and specifications at such time as they may be required by the City Engineer or 'as provided ,herein; and_ WHEREAS , the DEVELOPER further agrees to perform at his sole cost all the work necessary to complete installation of the improvements defined in Exhibit C attached hereto and of the Deferred Improvements which will be required in accordance with those plans to be prepared; and Page 1 • s/.,s rJ 1176 F.CE604 WHEREAS , the DEVELOPER agrees to provide bonds, cash payments , or - other guarantees as outlined herein to assure compliance with conditions of development approval; and WHEREAS, pursuant to the provisions of this AGREEMENT, the CITY hereby established the amounts of Bonds , Fees, and Deposits as set forth in the following schedule: SCHEDULE OF BONDS, FEES AND DEPOSITS Improvement Category - Category 1 (980-206 .42) PART A. Faithful Performance Bond: $8 , 300 . 00 For those Improvements defined in Exhibit C: Eight Thousand Three Hundred and no/100 Dollars Torre Avenue Realignment within Frontage is Deferred Intersection Improvements are. Deferred PART B. Labor and Material Bond: $8, 300 .00 For those Improvements defined in Exhibit C: Eight Thousand Three Hundred and no/100 Dollars PART C. Checking and Inspection Fee: $ 498 . 00 Four Hundred Ninety-Eight and no/100 Dollars PART D. Indirect City Expenses: $ 75 .OQ Seventy-Five and no/100 Dollars PART E. Development Maintenance Deposit: $ 250 .00 Two Hundred Fifty and no/100 Dollars PART F. Storm Drainage Fee: $4 , 265.00 Four Thousand Two Hundred Sixty-Five and no/100 Dollars • PART G. One Year Power Cost: N/A PART H. Street Trees: By Developer PART I. Map Checking Fee: N/A PART J. Park Fee: N/A Page 2 PART K. Water Main Extension Deposit N/A Hi76 i' 6E6O5 NOW, THEREFORE, IT IS HEREBY MUTUALLY AGREED by and between the parties hereto as follows ; TO-WIT : 1. DEDICATION (a) It is anticipated by the Parties to this Agreement that City may, at such time as the City elects to extend Torre Avenue to the North, wish to realign Torre Avenue. Upon written notice from the City that the City is undertaking such realignment of Torre Avenue, Developer agrees and hereby covenants for itself and its successors in interest to dedicate, and grant in the form attached hereto as Exhibit D, an easement for roadway purposes over a triangular strip of land on the west side of Torre Avenue as described in Exhibit E attached hereto. Should the City elect to extend Torre Avenue without re- alignment, the City shall , upon acceptance of the improvements for the extension of Torre Avenue, file for record in the Office of the County Recorder of Santa Clara, State of California, a copy of a Resolution of City wherein City releases Developer or its successors from any further obligation to dedicate the property described in Exhibit E. (b) In the event Developer, pursuant to (a) above, dedicates' the property described in Exhibit E,. Developer agrees : (1) That said dedicated property shall be free and clear of all liens or encumbrances except those which the City shall waive in writing; and (2) To provide to City at Developer ' s sole cost and expense a preliminary title report relating to the property offered for dedication and issued by a Title Insurance Company. (c) Upon the condition precedent that the DEVELOPER shall perform each and every covenant and condition of this AGREEMENT, the CITY agrees to accept said real property offered for dedication. 1A. ASSESSMENT DISTRICT Pursuant to condition 16 of Building Permit Application 7-U-81, DEVELOPER agrees, for itself and its assigns and successors , to partici- pate in the formation of any local improvement district duly formed under assessmentdistrict law with DEVELOPER'S proportionate share of assess- ments determined per assessment district law. 2. INSTALLATION OF WORK It is further agreed that: (a) The DEVELOPER shall install and complete the Improvements referenced in Exhibit C, hereinafter designated as the "Work" , with one (1) year from the date of execution of this AGREEMENT, or such longer period as may be specifically authorized in writing by the City Engineer. In the event the DEVELOPER fails or refuses to complete the Work within the specified period of time, the CITY, as its sole option, shall be authorized to complete the Work in whatever manner the CITY shall decide. In the event the CITY completes the Work, the CITY may Page 3 • • • Hi76I GE6OC - recover any and all costs incurred thereby from the DEVELOPER or the DEVELOPER's surety or both. It is further agreed that DEVELOPER shall install and complete the Deferred Improvements , as shown on Exhibit B, within one year from the date of notice from CITY to undertake such Improvements . b) The DEVELOPER shall install and complete- the Work in a good and workmanlike manner in accordance with the plans as approved by the City Engineer of Cupertino. The Work shall be done in accordance with existing ordinances and resolutions of the CITY and in accordance with all plans, specifications , standards, sizes , lines and grades approved by the City Engineer. The Work shall be done in accordance with all State and County Statutes applicable thereto. The decision of the City Engineer shall be final as to whether any material or work- manship meets the standards , specifications , plans, sizes, lines and grades as set forth. (c) It is further agreed '.that the Work shall be done in accordance with the most current Standard Specifications of the Department of Public Works, California Department of Transportation, State of California, and in accordance with the specifications of the Cupertino Sanitary District where applicable. Where the words "State" or "California Division of Highways" are mentioned in the State Specifications, it shall be considered as re- ferring to the CITY of Cupertino; also wherever the "Director" or "Director of Public Works" is mentioned, it shall be considered as re- ferring to the City Engineer. In the case of conflict between the State Specifications and the specifications of the CITY and/or the Cupertino Sanitary District, the specifications of the CITY and/or the Cupertino Sanitary District shall take precedence over and be used in lieu of such conflicting portions . 3 . EXCAVATION PERMIT It is further agreed that the DEVELOPER shall comply with Section Three of Ordinance No. 130 of the CITY by obtaining an excavation permit from the City Engineer before the commencement of any excavation in, on, or under the surface of any existing public street, lane, alley, sidewalk, or other public place. It is further agreed that the DEVELOPER shall notify the City Engineer of the exact date and time when the proposed excavation is to commence. Page 4 I - 4. QUITCLAIM DEED H176 FACECO7 It is further agreed that .DEVELOPER, when requested by the CITY, •shall quitclaim all his rights and interests in, and shall grant to -CITY authorization to extract water from the underground strata laying beneath said project and DEVELOPER agrees to execute a "Quitclaim Deed and Authorization" in favor Of CITY, when presented to him for sig- nature. • 5. BONDS AND OTHER SECURITY (a) Upon the execution of this AGREEMENT, the DEVELOPER shall file with the CITY a faithful performance bond to assure his full and faithful performance of this AGREEMENT. The penal sum of said faith- ful performance bond shall be the full cost of any payment to be made under this AGREEMENT, the value of any land agreed to be dedicated, and any improvements to be made under this AGREEMENT. In the event that improvements are to be made under this AGREEMENT, the DEVELOPER shall, in addition to said faithful performance, file with the CITY a labor and materials bond in a penal sum adequate to assure full pay- ment of all labor and materials required to construct said improve- ments. The amount of said bonds shall be as designated by the City Engineer. Said bonds shall be executed by a surety company authorized to transact a surety business in the State of California and must be approved by the City Attorney as to form and by the City Engineer as to sufficiency. In the event that the DEVELOPER shall fail faithfully to perform the covenants and conditions of this AGREEMENT, or to make any payment, or any dedication of land, or any improvements herein required, the CITY shall call on the surety to perform this AGREEMENT or otherwise indemnify the CITY for the DEVELOPER' S failure to do so. (b) In lieu of a surety bond, the DEVELOPER may elect to secure this AGREEMENT by depositing with the CITY: (1) Cash; or, • • ( 2) A cashier' s check, or a certified check, payable to the order of the City of Cupertino or, (3) A certificate of deposit, or instrument of credit meeting the requirements of Government Code Section 66499 (b) or (c) . Page 5 • • H176 ?M E 608 • • (c) The amount of said cash, checks, certificate of deposit, or instrument of credit shall be as designated by the City Engineer, and shall - be the equivalent to that which would have been required had the DEVELOPER furnished the CITY with a surety bond. In the event that the DEVELOPER shall fail faithfully to perform the covenants and con- ditions of .this AGREEMENT, or to make any payment', or any dedication -of land, or any improvements herein required, the CITY may apply the "proceeds of said security thereto. (d) No release of surety bond, cash deposit, check, or certi- ficate of deposit, shall be made except upon approval of the City Council. (e) No interest shall be paid on any security deposited with the CITY. 6 . CHECKING AND INSPECTION FEE It is further agreed that DEVELOPER shall pay any and all neces- sary direct expenses for inspection, checking, etc. , incurred by CITY in connection with said Project, and that DEVELOPER shall have depos- ited with CITY, prior to execution of this AGREEMENT, the amount as set forth herein at Page 2 (Part C) . Should construction cost vary materially from the estimate from which said sum is calculated, the City Engineer shall notify DEVELOPER of , any additional sum due and owing as a result thereof: ' - - 7. INDIRECT EXPENSES - It is further agreed that DEVELOPER shall pay ' to CITY, prior to execution of this AGREEMENT, indirect expense allocable to processing these improvements, the amount as set forth herein at Page 2 (Part D) . 8 . DEVELOPMENT MAINTENANCE DEPOSIT Page 6 • • • • H17C PEE 609 It is further agreed that the DEVELOPER shall pay to the CITY, prior to execution of this AGREEMENT, the amount set forth herein at Page •2 (Part E) as a development maintenance deposit to insure proper dust control and cleaning during the construction period. The devel- opment maintenance deposit may be utilized for repairs of defects and .imperfections arising out of or due to faulty workmanship and/or ma- -±erials appearing in said work during the period until release of the .improvement bonds by the CITY. Should the DEVELOPER complete the required repairs to the entire satisfaction of the CITY, the unused balance will be returned after the release of the improvement bonds. 9 .A STORM DRAINAGE FEE - - It is further agreed that the DEVELOPER shall deposit with the CITY, prior to execution of this AGREEMENT, a storm drainage charge in connection with said project in accordance with the requirements established in Resolution 4422, March 21, 1977 in the amount as set forth herein at Page 2 (Part F) . 9 .B WATER MAIN EXTENSION DEPOSIT The DEVELOPER further agrees to deposit with the CITY those monies required to comply with "Policy on Water Main Extensions Work and Deposits" dated 9/30/77. The deposit shall be held by the CITY until said monies are needed to implement improvements outlined by the Director of Public Works or improvements outlined within an adopted Water Master Plan. The amount shown herein at Part K, Page 2, shall be the full amount due. 10 . ONE YEAR POWER COST It is further agreed that the DEVELOPER shall pay to CITY prior to execution of this AGREEMENT, the amount as set forth herein at Page 2 (Part G) , which amount represents the power cost for street lights for one •year. • 11. FEES FOR THE INSTALLATION OF STREET TREES It is further agreed that the CITY shall, at such time as deemed appropriate by the City Engineer, plant street trees in conformance with the standards of the CITY of Cupertino. Variety of tree shall be selected from the City approved list. • Page 7 12. PARK FEES H1, 64 cE61U It is further agreed that the DEVELOPER shall pay such fees and/or dedicate such land to the CITY, prior to execution, as is • required within "Park Dedication Ordinance" Number 602, 1972 and .which is further stipulated under Part J. , Page 2 herein. 13 . MAINTENANCE AND ACCEPTANCE OF THE WORK- It is further agreed that the Developer shall maintain the Work until such time as the Work is accepted and for a period of one year from the date of such acceptance. The- City agrees to accept the Work at such time as the Work is completed and all de- ficiencies in the Work are corrected to conform to the Plans and the City standards and specifications for the Work. The DEVELOPER shall, upon written notice thereof, immediately repair or replace, without cost or obligation to the City of Cupertino, and to the entire satisfaction of said CITY, all defects and imperfections arising out of or due to faulty workmanship and/or materials appearing in said Work. 14. SANITARY DISTRICT It is further agreed that the DEVELOPER shall file with the CITY, upon execution of this agreement, a letter from the Cupertino Sanitary District stating that the DEVELOPER has' entered into a separate AGREEMENT with the said District to install sanitary sewers to serve all lots within said Project and stating that a bond to insure full and faithful performance of the constructions of the said sanitary sewers and to insure maintenance of said sanitary sewer in conformance with the provisions as set forth in Paragraph 13 above has been filed.. Page 8 H176 PAGE 611 15. GOVERNMENT CODE It is further agreed that DEVELOPER shall file with CITY, upon t:execution of this AGREEMENT, substantial evidence that all provisions of Section 66493, Article 8 , Chapter 4 of the Government Code, per- taining to special assessments or bonds, have been complied with. 16. CENTRAL FIRE DISTRICT It is further agreed that the DEVELOPER shall file with the CITY, upon execution of this AGREEMENT, a letter from the Central Fire Pro- tection District of Santa Clara County, stating that the DEVELOPER has entered into an AGREEMENT with said District to install fire hydrants to serve said Project and stating that all necessary fees have been deposited with said District to insure installation. 17 . STREET LIGHTING It is further agreed that the DEVELOPER shall apply for the in- stallation of electric power forstreetlighting at the earliest date -possible. 18 . P. G. and E. and P. T. and T. It is further agreed that the DEVELOPER shall pay to Pacific Gas and Electric Company and/or to Pacific Telephone and Telegraph Company any and all fees required for installation of overhead and/or under- ground wiring circuits to all electroliers within said property and any and all fees required for undergrounding as provided in Ordinance No. 331 of CITY when DEVELOPER is notified by either the City Engineer or the Pacific Gas and Electric Company and/or Pacific Telephone and Telegraph Company that said fees are due and payable. 19. EASEMENTS AND RIGHT-OF-WAY It is further agreed that any easement and right-of-way necessary for completion of the Project shall be acquired by the DEVELOPER at his own cost and expense. It is provided, however, that in the event eminent domain proceedings are required by the CITY for the purpose of securing said easement and right-of-way, that the DEVELOPER shall deposit with CITY a sum covering the reasonable market value of the Page 9 • • Hi` 6i ct6i2 • . .land proposed to be taken and to ,. be included in said sum shall be a reasonable allowance for severance damages, if any. It is further provided that in addition thereto, such sums as may be required for legal fees and costs , engineering, and other incidental costs in such reasonable amounts as the CITY may require shall be deposited with the City of Cupertino. • 20 . HOLD HARMLESS It is further agreed that, commencing with the performance of the Work by the DEVELOPER or his contractor and continuing until the com- pletion of the maintenance of the Work, the DEVELOPER shall indemnify, hold harmless and defend the CITY from and against any or all loss, cost, expense, damage or liability, or claim thereof, occasioned by or in any way whatsoever arising out of the performance or nonperformance of the Work or the negligence or willful misconduct of the DEVELOPER or the DEVELOPER' S agents, employees and independent contractors. 21. INSURANCE It is further agreed that: The DEVELOPER shall take out, or shall require any contractor engaged to perform the Work to take out, and maintain at all times during the performance and maintenance of the Work called for or required to be done hereunder, a policy of insurance naming the CITY and members of the City Council of the City of Cupertino, individually and collectively, and the officers, agents, and employees of the City individually and collectively, as insured. Said separate policy shall provide bodily injury and property damage coverage to the foregoing named CITY and individuals covering all the Work performed by, for, or on behalf of said DEVELOPER. Both bodily injury and property damage insurance must be on an occurrence basis; and said policy or policies shall provide that the coverage afforded thereby shall be primary coverage to the full limit of liability Stated in the declarations, and if the CITY, its members of the City Council, individually and collectively, and the officers, agents, and employees of the City, individually and collectively, have other in- surance against the loss covered by said policy or policies, that other insurance shall be excess insurance only. • (a) Each of said policies of insurance shall provide coverage in the following minimum amounts: For bodily injury, $100,000 each per- son; $300 , 000 each occurrence; property damage, $50 , 000 on account of any one occurrence with an aggregate limit of not less that $200 , 000 . (b) The DEVELOPER shall file with the City Engineer at or prior to the time of execution of this AGREEMENT by the DEVELOPER such evi- dence of said foregoing policy or policies of insurance as shall be satisfactory to said City Engineer. Each such policy or policies • Page 10 • • H176 PAGE;613 shall bear an endorsement precluding the cancellation or reduction in coverage without giving the City Engineer at least 10 days advance notice thereof. (c) In the event that the Project covered herein should be mu- tually situated in or affect the area of jurisidction of a separate municipality or political subdivision of the State of California, the policies of insurance required herein and above shall co-name such municipality or political subdivision and the provision set forth herein and above for the protection of the CITY -shall equally apply to municipality and political subdivision. 22 . DEFERMENT • It is further agreed that the DEVELOPER shall furnish, construct and install at his own expense, either upon six (6) months notice from the CITY, in which event the Work must be completed within one (1) year thereafter, or in the absence of such notification, no later than five (5) years and six (6) months from date of this AGREEMENT, the improvements for the Rodrigues Torre Intersection described in Exhibit B. In addition, DEVELOPER agrees to furnish, construct and install at its own expense the improvements along the Property frontage to accomodate the realignment of Torre Avenue referenced in paragraph 1, should the City elect to undertake such realignment pursuant to the provisions of Paragraph 1 herein. - Until such notification is made by CITY, or such times has - elapsed, Sections numbered two through twenty-one, excepting Section 9 , et al, are hereby deferred. The DEVELOPER further agrees to cooperate, upon notice by the CITY, with other property owners , the CITY and other public agencies to provide the improvements set forth herein under a joint cooperative plan, including the formation of a local improvement district, if this method is feasible to secure the installation and construction of the improvements 23. SUCCESSORS - RUN WITH LAND This AGREEMENT shall bind the heirs, administrators, executors , successors , assigns and transferees of DEVELOPER. Itis agreed and understood that this AGREEMENT shall be filed for record in the Office of the County Recorder of the County of Santa Clara, State of Calfiornia and that the covenants in this AGREEMENT shall run with the land, a description of which is contained in Exhibits A, which is attached hereto and made a part hereof by reference, and are for the benefit of the other lands in the CITY of Cupertino. H176 nct614 IN WITNESS WHEREOF, CITY has caused its name to be hereunto af- fixed by its Mayor and City Clerk, thereunto duly authorized by resolution of the City Council and said DEVELOPER has hereunto caused his name to be affixed the day and year first above written. • CITY OF CUPERTINO ` -; 00� Approved as t form:1-74. Mayor: �� �1 �� C Attorney City Clerk- te- DEVELOPER: 4itiea.N duvriityN6 M6 i4 saMrn ►' Y T3 'e4.f4 'nuc MANAG mi G 6FSN'4Re4;l_ 2rk1k7'L. Acknowledgements and Exhibits A through E attached. • • Page 12 - • STATE OF CALIFORNIA ) Hi�J.��, {6'±•5 z SS. COUNTY OF SANTA CLARA) ;,ir. �J J• ~'c jai / J S A,. • On this day of �� yam' dayof -�,2[ ��i/D,P,17 , • in the year of /yea , before me Dopa i /'/�,fi e ( . /one /os , personally appeared � ,p_ �1 personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to this instrument, and acknowledged that he (she or they) executed it. WITNESS my hand and official seal. rowsco ccscococo Cocom cipce csact 8OFFICIAL SEAL • ,:': DOROTHY MARIE CORNELIUS 2fyL9 `.y.—t Z-' NOTARY PUBLIC-CALIFORNIA c SANTA CLARA COUNTY Not- y Publicr n and for the County My Commission Expires Feb. 17, 1984 of Santa Clara, State of California ACU'MG,C COC(9C.l9G.l`iC,,:d .CA:06 GA.,:Gl963.0, • CORPORATION ACKNOWLEDGEMENT • STATE OF CALIFORNIA ) ss. COUNTY OF SANTA CLARA) On this day of day of in the year of , before me personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument as president (or secretary) or on behalf of the corporation therein named and acknowledged to me that the corporation executed it. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal in the County of Santa Clara the day and year in this certificate first above written. Notary Public in and for the County of Santa Clara, State of California 6/29/82 H176 PAGE616 • ALL THAT CERTAIN REAL PROPERTY IN THE CITY OF CUPERTINO, COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, DESCRIBED.AS FOLLOWS : • PARCEL TWO ALL OF PARCEL 2, AS SHOWN UPON THAT CERTAIN MAP ENTITLED, "PARCEL MAP BEING A SUBDIVISION OF LOT 9 OF TRACT 3743 (186-MAPS-36 & 37) " , WHICH MAP WAS FILED ' FOR RECORD IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, ON DECEMBER 12 , 1978 IN BOOK 432 OF MAPS, AT PAGE 3 . • • • • EXHIBIT A • • • EXHIBIT B Deferred Improvements H176PAGE617 The Torre Avenue Realignment: Installation of improvements along property frontage to accommodate shift-of Torre Avenue, per condition 17 of Application 7-U .-81, as confirmed by the City Council in the City' s letter of April 8, 1982 to Developer. The Rodrigues/Torre-Avenue Intersection: Installation of textured paving treatment per condition 20 of Application 7-:U -81, as confirmed by the City Council in the City' s letter of April 8 , 1982 to Developer. • EXHIBIT C H176FA,E618 • Non-Deferred Work Public_Right-of=Way A. The DEVELOPER is required to install City standard sidewalks along the total frontage of the Development. If dedication is required, the DEVELOPER further agrees to provide such dedication of sidewalk easements as may be required by the City Council. B. The DEVELOPER is required to install a storm drain system which serves the site. The work outlined herein above is shown on those certain plans prepared by Design and Engineering Systems, Inc. , dated 8/23/82, as approved - by the City. Hi 76 FAGS 619 GRANT OF EASENENT FOR ROADWAY PURPOSES grant (s) to the CITY OF CUPERTINO, for public roadway purposes , together with the right to construct, repair , operate and maintain any and all public utilities and improvements which shall be or become necessary for preservation of the Public safety, welfare or. convenience , the hereinafter' described property which is situate in the City of Cupertino , County of Santa. Cla:•a , State of California, and as described as follows : (Description attached) IN WITNESS WHEREOF, executed this day: of , 19 • (Notary acknowledgment • to be attached) • EXHIBIT D TANGENT: 15° 15' • H176F46E620 N89' 0320° W 18.50' hJ 69° 03' 20' W 476.00' q0% [rA :<: POINT OF - E.CORNER/ ljc� 6CGiN NiNr; TRACT 343 = 970. 00 A= I&°09'44" L: 132.5e,' AREA OEWIGATEP 803 sa. —._ N : to �� ) rJ 84°051,9°14 PAROL 2 PORTION of LOT9 TRPcT 3743 - 01 432c.v. , V. I 601 —� A c') • \91 • • 111-401, f RODRISUES FIVE. EXHIBIT E