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18-225 Subdivision Agreement, 22045 Regnart Rd APN 366-46-004RECORDING REQUESTED BY: City of Cupertino WHEN RECORDED, MAIL TO: City Clerk's Office City of Cupertino 10300 Torre Avenue Cupertino, CA 95014-3255 NO FEE IN ACCORDANCE WITH GOV. CODE 27383 24074655 Regina Alcomendras Santa Clara County -Clerk-Recorder 12/03/2018 03:44 PM Tilles: 1 Fees : 10 .00 Taxes: 0 Total : 0.00 Pages: 18 (SPACE ABOVE THIS LINE FOR RECORDER'S USE) SUBDIVISION AGREEMENT 22045 Regnart Road, Cupertino, CA APN 366-46-004 ,J) Original D For Fast Endorsement "NO FEE" City of Cupertino CERTIFICATE OF ACCEPTANCE is hereby given in order to comply with the provisions of Section 27383 of the Government Code. This is to certify that the interest in real property conveyed by the deed or grant dated October 15, 2018, from 22045 Regnart Road, Cupertino, CA to the City of Cupertino, a governmental agency, is hereby accepted by order of the Public Works Director, and the grantee consents to recordation thereof by its duly authorized officer. Dated: By: November 27, 2018 Lauren Sapudar Senior Office Assistant City of Cupertino SUBDIVISION AGREEMENT 22045 Regnart Road, Cupertino, CA 95014 APN : 366-46-004 I --!{>\ This AGREEMENT ("Agreement") is made and entered into this---2._ day of (X.,+ob;.X 2o li_, by and between the CITY OF CUPERTINO, a municipal corporation of the State of California, ("CITY"), and Robert A. Bigler and Punita P. Bigler, trustees of The Bigler Trust created on September 10, 1997, ("Subdivider") for a three lot subdivision located at 22045 Regnart Road, Cupertino, CA. RECITALS 1. Pursuant to the Subdivision Map Act of the State of California and the City's local ordinances and regulations relating to subdivision maps, Subdivider has presented to the City for approval a parcel map titled "Parcel Map Lands of Bigler" (the "Map") for the subdivision of certain real property in the City of Cupertino, designated as Parcel Map for three lot subdivision at 22045 Regnart Road (the "Subdivision"). 2. Subdivider has prepared and City has approved the following plans and related specifications (the "Improvement Plans") for construction, installation and completion of certain public and private improvements in connection with the Subdivision (the "Improvements). The Improvement Plans are on file in the City's Department of Public Works and are incorporated into this Agreement by this reference. 3. Subdivider, has also offered for dedication to City certain streets, ways and easements delineated on the Map (the "Dedications"). 4. On Ochle..v 1..? , 20_QL, the Director of Public Works approved the Map and offers of dedication shown on the Map, conditioned on Subdivider entering into this Agreement to construct and complete the Improvements. NOW, THEREFORE, in consideration of City's approval of the Map, and in order to insure satisfactory performance by Subdivider of its obligations under the Subdivision Map Act and the Cupertino Municipal Code, City and Subdivider agree as follows: 1. SUBDIVIDER'S OBLIGATION TO CONSTRUCT IMPROVEMENTS a. Completion of Improvements. Subdivider, at its own expense, and in compliance with all provisions of the Subdivision Map Act, the Cupertino Municipal Code, the Map and any amendments thereto, and other applicable laws, shall furnish, install, and construct all required improvements in conformance with the Improvement Plans. The decision of the City Engineer shall be final as to whether any material or workmanship meets the plans, specifications, and standards as set forth. b. Compliance with applicable laws and rules . Subdivider shall construct the Improvements and the improvements shall be constructed in accordance with the most current Standard Specifications of the Department of Public Works, California Department of Transportation, State of California, and in accordance with the specifications of the Cupertino Sanitary District where applicable . Wherever the words "State " or "California Division of Highways " are mentioned in the State Specifications , it shall be considered as referring to the City of Cupertino; also wherever the "Director" or "Director of Public Works" is P age 1 of 14 mentioned, it shall be considered as referring to the City Engineer . In case of conflict between the State Specifications and the specifications of the CITY, the specifications of the CITY shall take precedence over and be used in lieu of such conflicting portions. c. Repair and replacement of damaged public facilities. Subdivider shall, at its own expense, repair or replace all public improvements, public utility facilities, surveying monuments and other public facilities that are destroyed or damaged as a result of any work under this agreement . Subdivider shall promptly notify the City Engineer of such damage and shall obtain the City Engineer's approval of all repair and replacement of damaged facilities . d . Subdivider's responsibility until City's acceptance . Until City accepts the Improvements, Subdivider shall be responsible for the care and maintenance of such improvements and shall bear all risks of loss or damage to the improvements. City shall not have any liability for any accident, loss or damage to the Improvements prior to their completion and acceptance by City. City's acceptance of the Improvements shall not constitute a waiver of any defects in the Improvements or Subdivider's obligation to repair such defects as provided in section 9 of this Agreement. e. Time for installation of improvements. SUBDIVIDER shall install and complete the Improvements within one (1) year from the date of execution of this AG REEM ENT, or such longer period as may be specifically authorized in writing by the City Engineer pursuant to section l(f) of this Agreement (time extensions). In the event the SUBDIVIDER fails or refuses to complete the Work within the specified period of time, the CITY, at its sole option, shall be authorized to complete the Work in whatever manner the CITY shall decide . In the event the CITY completes the Work, the CITY may recover all costs incurred thereby from the SUBDIVIDER or the SUBDIVIDER'S surety or both. No final inspection shall be granted or street improvements shall not be accepted unless all the requirements for safety purposes are installed, such as sidewalks, handicap ramps, street lights, etc. f. Time extensions. The City Engineer, in his or her sole discretion, may approve, in writing, a request for extension or completion of the time required for construction of the Improvements upon a showing of good cause by the Subdivider. Good cause may include delay resulting from an act of the City, acts of God, strikes, boycotts, or similar job actions which prevent the conduct of the work. In approving a request for time extension, the City Engineer may impose reasonable related conditions, such as requiring Subdivider to furnish new or modified improvement security guaranteeing performance of this Agreement, as extended, in an increased amount necessary to compensate for any projected increase in the estimated total cost of Improvements, as determined by the City Engineer. g. Permits. Subdivider shall, at its own expense, obtain and comply with the conditions of all necessary permits and licenses for the construction of the Improvements and give all necessary notices and pay all fees and taxes required by law. 2. ACQUISITION AND DEDICATION OF EASEMENTS OR RIGHTS OF WAY a. SUBDIVIDER offers to dedicate the real property shown on Map as filed for record with the County of Santa Clara, which is made a part hereof by reference (the "Dedicated Property"). Upon the condition precedent that the SUBDIVIDER shall perform each and every covenant and condition of this AGREEMENT, the CITY agrees to accept said real property offered for dedication. Page 2 of 14 The Dedicated Property shall be free and clear of all liens or encumbrances except those which the CITY agrees to waive in writing. Subdivider agrees not to revoke this offer of dedication, and to keep said offer open until the CITY accepts offer. Upon execution of this Agreement, Subdivider agrees to deliver a properly executed grant deed to the CITY of the real property described in the Map, and such other executed conveyances, or instruments necessary to convey clear title as herein required . The SUBDIVIDER shall provide, at the SUBDIVIDER'S sole cost and expense, to the City at the time of acceptance of ded ica tion and recordation of deed, (1) a pre I iminary title report iss ued by a title insurance company relating to the property offered for dedication, and (2) a standard policy of title insurance issued by a title insurance company and insuring the CITY, showing that the Dedicated Property is free and clear of all liens or encumbrances except any that the City expressly agreed to waive. b. Subdivider shall acquire any easement and right-of-way necessary for completion of the Project at its own cost and expense . However, that in the event eminent domain proceedings are required, the CITY for the purpose of securing said easement and right-of-way, SUBDIVIDER shall deposit with CITY, a sum covering the reasonable market value of the land proposed to be taken and, to be included in said sum, shall be a reasonable allowance for severance damages, if any. It is further provided that in addition thereto, such sums as may be required for lega I fees and costs, engineering, and other incidental costs in such reasonable amounts as the CITY may requi r e, shall be deposited with the City of Cupertino . 3. INSPECTION AND FINAL ACCEPTANCE a. Subdivider shall at all times maintain proper facilities and safe access for inspection of the Improvements by the City Engineer. b . Upon completion of the improvements or any category of improvements in compliance with the Improvement Plans and all applicable City standards, then the City Engineer shall certify completion of the Improvements . Subdivider shall bear all costs of inspection and certification for acceptance. Acceptance by the City Engineer shall not constitute a waiver by the City of any defects in the Improvements. 4. QUITCLAIM DEED SUBDIVIDER, when requested by the CITY, shall quitclaim all his/her rights and interests in, and shall grant to CITY authorization to extract water from the underground strata lying beneath said project. SUBDIVIDER agrees to execute a "Quitclaim Deed and Authorization" in favor of CITY, when presented to him/her for signature. 5. SECURITY a. Required Security . Prior to execution of this Agreement, Subdivider shall provide the following security to City in a form acceptable to the City : (1) Faithful performance . Security for faithfu l performance in the amount set forth in Part A of Exhibit A, the SCHEDULE OF BONDS, FEES AND DEPOSITS. (2) Labor and Materials. Security for labor and materials in the amount set forth in Part B of Exhibit A, the SCHEDULE OF BONDS, FEES AND DEPOSITS. b . Form of Security. Subdivider shall provide as security, bonds executed by a surety company authorized to transact a surety business in the State of California and approved by the City as to sufficiency. In the event that the SUBDIVIDER shall fail to faithfully perform the covenants and conditions of this Page 3of 14 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 indemn ify the CITY for the SUBDIVIDER'S failure to do so . In lieu of a surety bond, the SUBDIVIDER may elect to secure this AGREEMENT by depositing with the CITY (1) Cash; (2) A ca shier's check, or a certified check payable to the order of the City of Cupert i no ; or (3) A certificate of deposit, or instrument of credit acceptable to the City and meeting the requirements of Government Code Section 66499 (a) or (b). The amount of said ca sh, checks, certificate of deposit, or instrument of credit shall be as designated by the City Engineer, and shall be the equivalent to that which would have been required had the SUBDIVIDER furnished the CITY with a faithful performance surety bond. In the event that the SUBDIVIDER shall fail to faithfully perform the covenants and conditions of this AGREEMENT, or to make any payment, or any dedication of land, or any improvements herein required, the CITY may apply the proceeds of said security thereto. c. Release of Security. No release of surety bond, cash deposit, check or certificate of deposit shall be made except upon approval of the Director of Public Works. Schedule for bond and insurance release for paper bonds are as follows : (1) Release of 90 percent of the faithful performance bond upon acceptance by the Director of Publ ic Works . (2) Release of the remaining 10 percent of the performance bond at one year from acceptance after all deficiencies have been corrected and in the absence of any claim against such bond. (3) Release of the entire labor and material bond at six months from acceptance after all deficiencies have been corrected and in the absence of any claim against such bond, reduced to an amount equal to the total amount claimed by all claimants for whom liens have been filed and of which notice has been given to the City, plus an amount reasonably determined by the City Engineer to be required to assure the performance of any other obligations secured by the security . The balance of the security shall be released upon settlement or release of all claims and obligations for which the security was given. (4) Liability insurance , provided by the SUBDIVIDER to hold the CITY harmless in the event of liability arising from the project, to be retired at the end of one year if all deficiencies have been corrected and in the absence of any claim against the insurance. 6. PAYMENT OF REQUIRED FEES a. Permits and licenses. Subdivider shall, at its sole expense , obtain all necessary permits and licenses for the construction and installation of the Improvements, give all necessary notices, and pay all fees required by City ordinance, including but not limited to the fees described in this Agreement, and all taxes required by law. b . Fees . Subdivider shall pay fees in the amounts set forth in Exhibit A, including but not limited to the following, as required : (1) Inspection Fees. SUBDIVIDER shall pay all necessary direct expenses for inspection, checking , etc. incurred by CITY in connection with said Project , and that SUBDIVIDER shall have deposited sufficient funds with CITY, prior to execution of this AGREEMENT . Should construction costs vary materially from the estimate from which this sum is calculated, the City Engineer shall notify SUBDIVIDER of any additional sum due and owing as a result thereof. Page 4 o f 14 (2) Storm Drainage Fee . SUBDIVIDER shall deposit with the CITY , prior to execution of this AGREEMENT, a storm drainage charge in connection with the said Project in accordance with the requirements established in Resolution 4422, March 21, 1977. (3) Map Checking Fee. SUBDIVIDER shall deposit with CITY, prior to execution of this AGREEMENT , for office checking of final map and field checking of street monuments, in compliance with Section 4:1 of Ordinance No. 47 (Revised 12/04/61) of CITY. (4) Park Fee. SUBDIVIDER shall pay such fees and/or dedicate such land to the CITY, prior to execution of this AGREEMENT, as is required within Section 18 .24 .030, Park Land Dedication , Cupertino Municipal Code. Park fees are calculated in accordance with action originally adopted by the City Council on March 19, 1991 and Chapter 14.05 or Section 18 .24 .030 of the Cupertino Municipal Code and as subsequently amended . (5) Reimbursement Fee . SUBDIVIDER shall deposit with the CITY, prior to execution of this AGREEMENT, a reimbursement fee for any street improvements that have been installed by the City, or by another property owner. Subdivider shall pay the City for the cost of the land at the cost to the City, or another property owner, and shall pay a street improvement reimbursement charge for the improvements which the City or another property owner, installed on the street abutting or included in the benefited property, in an amount equal to the total improvement costs for each particular benefited property as set forth in a re i mbursement agreement . Payments for both land and improvements shall include simple interest in the amount of seven percent per year, to be calculated in the following manner: (i) Land Cost . Interest to accrue from the date the street improvements are accepted by the City to the date the street improvements reimbursement charge is paid, or if the land is purchased by the City for a City project, from the date of purchase to the date the charge is paid . (ii) Improvement Cost. Interest to accrue from the date the street improvements are accepted by the City to the date the street improvement reimbursement charge is paid, or if installed by the City, from the date installation commenced to the date the charge is paid. (iii) Provided , however, that the interest shall be waived if the adjoining property owner dedicates or has dedicated to the City land necessary for the street improvements, or where no such dedication is necessary. 7. DEVELOPMENT MAINTENANCE DEPOSIT SUBDIVIDER shall pay to the CITY, prior to execution of this AGREEMENT, the amount set forth in Exhibit A as a development maintenance deposit. City may use the deposit at its discretion to correct deficiencies and conditions caused by the SUBDIVIDER or his/her contractor that may arise during or after the construction of the development, and to obtain copies of approved plans for the CITY's files. If the costs exceed the amount deposited, SUBDIVIDER shall pay actual overage prior to return of original plans. Any unexpended amount will be returned to the SUBDIVIDER at the time all bonds are released in accordance with paragraph 5 of this agreement. 8 . STREET TREE INSTALLATION SUBDIVIDER shall provide funds to the City for purchase and planting of street trees as deemed appropriate by the City Engineer ; or shall, at the discretion and at such time as deemed appropriate by the City Page 5 of 14 Engineer, plant street trees in conformance with the standards of the City of Cupertino . The variety, number and location of trees are subject to City's prior approval. 9. MAINTENANCE AND WARRANTY a. Warranty Period. Subdivider guarantees and warrants the Improvements and agrees to remedy any defects, damages, or imperfections in the Improvements arising from faulty or defective materials or construction of the Improvements for a period of one (1) year after City's final acceptance of the Improvements . Subdivider's obligation under this section shall include the repair, replacement, or reconstruction of all irrigation systems and all trees, shrubs, ground cover and landscaping for the required one-year period . b . Warranty repairs and replacements. If, within the warranty period, the Improvements or any part of the Improvements fail to fulfill any of the requirements of this Agreement or the Improvement plans and specifications, Subdivider shal I repair, replace or reconstruct any defective or otherwise unsatisfactory parts of the Improvements without delay and at no cost to City. If (a) Subdivider fails to commence repairs within thirty (30) days of the date of mailed written notice from City, or (b) City determines that public safety requires repair before Subdivider can be notified, City may, at its sole option, perform the required repair itself. Subdivider agrees to pay the cost of any repairs City performs pursuant to this agreement and City may, at its sole option, recover that cost as a lien against Subdivider's property. 10. SANITARY DISTRICT SUBDIVIDER shall file with the CITY, upon execution of this AGREEMENT, a letter from the Cupertino Sanitary District, where applicable, stating that the SUBDIVIDER has submitted plans for review by the District and that sanitary sewers are available to serve all lots within the Project. 11. GOVERNMENT COSTS SUBDIVIDER shall file with the CITY , upon execution of this AGREEMENT, sub stantial evidence that all provisions of Section 66493, Article 8, Chapter 4 of the Government Code, pertaining to special assessments or bonds, have been complied with . 12. UTILITIES SUBDIVIDER shall pay to Pacific Gas and Electric Company , AT&T , and/or appropriate utility companies, all fees required for installation of overhead and/or underground wiring circuits to all electroliers within said property and all fees required for undergrounding as provided in Ordinance No. 331 or subsequently adopted ordinances of CITY or regulations of the appropriate utilities when the SUBDIVIDER is notified by either the City Engineer, Pacific Gas and Electric Company, AT&T, or appropriate utility companies that said fees are due and payable. 13. HOLD HARMLESS AND INDEMNIFICATION a. To the fullest extent allowed by law, Subdivider shall indemnify and hold harmless CITY, its City Council, boards and commissions, officers, officials, agents, employees , servants, consultants and Page 6 of 14 volunteers (hereinafter, "lndemnitees") from and against any liability, loss, damage, expense, and cost (including reasonable legal fees and costs of litigation or arbitration), resulting from injury to or death of any person, damage to property, or liability for other claims, stop notices, demands, causes of actions and actions, arising out of or in any way related to Subdivider's performance or nonperformance of his/her duties under this Agreement, or from negligent acts or omissions or willful misconduct of Subdivider, its agents, employees, contractors, or subcontractors. Subdivider shall, at his/her own cost and expense, defend any and all claims, actions, suits or legal proceedings that may be brought against the City or any of the lndemnitees (with council acceptable to City) in connection with this Agreement or arising out of Subdivider's performance or nonperformance of his/her duties and obligations hereunder, including all claims, demands, causes of action, liability or loss because of or arising out of, in whole or in part, the design and construction of the improvements. This indemnification and agreement to hold harmless shall extend to injuries to persons and damages or taking of property resulting from the design or construction of the Subdivision, and the public improvements described in this Agreement, and in addition, to adjacent property owners as a consequence of the diversion of waters from the design or construction of public drainage systems, streets and other public improvements, except to the extent any of the foregoing is caused by the negligence or willful misconduct of the CITY or the CITY'S agents, employees and independent contractors. b. Acceptance by City of the Improvements shall not constitute an assumption by City of any responsibility for any damage covered by this section. City shall not be responsible for the design or construction of the subdivision or the improvements pursuant to the approved Improvement Plans or map, regardless of any negligent action or inaction taken by the City in approving the plans or map, unless the particular improvement design was specifically required by City over written objection by Subdivider, indicating that the particular improvement design was dangerous or defective and suggested an alternative safe and feasible design, submitted to the City Engineer before approval of the particular improvement design. c. After City's acceptance of the Improvements, Subdivider shall remain obligated to correct or eliminate any defect in design or dangerous condition created by defects in design or construction, provided however, that Subdivider shall not be responsible for routine maintenance. Provisions of this section shall remain in full force and effect for ten {10) years following City's acceptance of the Improvements. Subdivider acknowledges and agrees that Subdivider shall be responsible and liable for the design and construction of the Improvements and other work done pursuant to this Agreement and that City shall not be liable for any acts or omissions in approving, reviewing, checking, correcting, or modifying any Improvement Plans or related specifications or in approving, reviewing or inspecting any work or construction. The improvement security shall not be required to cover the provisions of this paragraph beyond the guarantee and warranty period specified in this agreement. 14. INSURANCE Prior to commencing any of the Public Improvements or Work referenced in this Agreement, SUBDIVIDER shall procure and maintain for the duration of the contract, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by SUBDIVIDER, its contractor, agents , representatives, employees or subcontractors. Page 7 of 14 Coverage shall be at least as broad as : 1. Commercial General Liability (CGL): Insurance Services Office (ISO) Form CG 00 01 covering CGL on an "occurrence" basis, written on a comprehensive general liability form , and must include coverage for liability arising from SUBDIVIDER 's Contractors acts or omissions, including Contractor's protected coverage, blanket contractual, products and completed operations, vehicle coverage and employer's non-ownership liability coverage, with limits of at least $2,000,000 per occurrence. The CGL policy must protect against any and all liability for personal injury, death, property damage or destruction, and personal and advertising injury. If a gene r al aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occur r ence limit. a. Any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be made available to the Additional Insured and shall be (1) the minimum coverage/limits specified in this agreement; or (2) the broade r coverage and maximum limits of coverage of any insurance policy, whichever is greater. b. Additional Insured coverage under SUBDIVIDER's policy shall be "primary and non- contributory" and shall be at least as broad as ISO CG 20 01 04 13. c. The limits of insurance required may be satisfied by a combination of primary and umbrella or excess insurance, provided each policy complies with the requirements set forth in this Contract. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City's own insurance or self-insurance shall be called upon to protect City as a named insured . 2. Automobile Liability covering owned, hired , and non-owned autos, with limit no less than $1,000,000 per accident for bodily injury and property damage. 3. Workers' Compensation: As required by the State of California , with Statutory Limits, and Employer's Liability Insurance of no less than $1,000,000 per accident for bod i ly injury or disease. If SUBDIVIDER maintains broader coverage and/or higher insurance limits, City will be entitled to SUBDIVIDER's broader coverage and/or higher limits . The City of Cupertino, its City Council, officers, officials, employees, agents , servants and volunteers are to be covered as addit ional insureds on the CGL policy. Endorsement of CGL coverage shall be at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later edition is used . For any claims related to this Agreement or the Work, SUBDIVIDER 's insurance shall be "primary and non-contributory" and at least as broad as ISO CG 20 010413 with respect to City, its officers, officials, employees and volunteers, and shall not seek contribution from City's insurance. If the limits of insurance are satisfied in part by Umbrella/Excess Insurance, the Umbrella/Excess Page 8 of 14 Insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a "primary and non-contributory" basis for the benefit of City. Each insurance policy must provide that coverage will not be canceled, except with 30 days' notice to City. Each certificate of insurance must state that the coverage afforded by the policy is in force and will not be reduced, cancelled or allowed to expire without at least 30 days advance written notice to City, unless due to non-payment of premiums, in which case ten days advance written notice must be provided to City . Such notice must be sent to City via certified mail and addressed to the attention of the City Manager. Each required policy must include an endorsement providing that the carrier agrees to waive any right of subrogation it may have against City. Further, SUBDIVIDER agrees to waive any rights of subrogation which any of SUBDIVIDER's insurers may acquire from SUBDIVIDER by virtue of payment of any loss . SUBDIVIDER agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation . The Workers' Compensation policy must be endorsed with a waiver of subrogation in favor of the City for all work performed by SUBDIVIDER or SUBDIVIDER's Contractor, its employees, agents and subcontractors. Insurance must be issued by insurers licensed in the State of California and with an A.M. Best's financial strength rating of "A VII" or better. 15. MAPS AND/OR IMPROVEMENT PLANS Subdivider shall provide CITY with the following maps and/or plans at the SUBDIVIDER 'S expense : A. A mylar blackline and three (3) prints of fully executed parcel map. B. A mylar blackline and three (3) prints of fully ex ecuted improvement plans . C. A scan in raster format of all executed improvement plans and map. D. One (1) Y:, size prints of fully executed plans and map . The SUBDIVIDER agrees to pay the CITY from the development maintenance deposit the cost for all prints of plans and maps. If costs exceed the amount deposited the SUBDIVIDER is required to pay actual overage prior to return of original plans . 16. ASSIGNMENT Subdivider shall not assign this agreement without the prior written consent of the City . Any attempted or purported assignment in violation of this paragraph shall be null and void and have no force or effect. The sale or other disposition of the Project shall not relieve Subdivider of its obligations under this agreement. If subdivider intends to sell the Project or any portion of the Project to any other person or entity, Subdivider may request a novation of this Agreement and substitution of improvement security. 17. COVENANT RUNNING WITH THE LAND P age 9 of 14 Thi s Agreement shall inure to the benefit of, and be bindin g u pon the heirs , administrators, successors , assigns and transferees of the Parties , and shall be recorded in the Office of the County Recorder and constitute a covenant running with the land . Upon any sale or division of the Property, the terms, covenants, conditions and restrictions of this agreement shall apply to each parcel , and the owner or owners of each parcel shall succeed to the obligations imposed upon Subdivider by this Agreement . 18. DEFAULT, BREACH, AND REMEDIES TO CITY a. Default. Default of Subdivider shall include, but not be li mited to : (1) Subdivider's failure to timely commence construction of Public Improvements under this Agreem ent; (2) Subdivider's failure to timely complete construction of the Improvements; (3) Subdivider's failure to timely cure any defect in the Improvements; (4) Subdivider's failure to perform substantial construction work for a period of 20 consecutive calendar day s after commencement of the work; (5) Subdivider's insolvency, appointm ent of a receiver, or the filing of any petition in ban k ruptcy, either voluntary or involuntary, which Subdivider fails to discharge w ithin 30 days ; (6) The commencement of a foreclo sure action ag ainst the subd ivision or a portion thereof, or any conveyance in lieu or in avoidance of foreclosure ; or (7) Subdivider's failure to perfo r m any other obligation under this Agreement. b . City reserves all remedies available to it at law or in equity for breach of Subdivider's obligations under this Agreement . The City shall have the right, subject to this section , to draw upon or use the appropriate security to mitigate City 's damages in the event of default by Subdivider . City's right to draw upon or use the security is in addition to any other remedy available to City. The parties acknowledge that the estimated costs and security amounts may not reflect the actual cost of construction of the improvements and, therefore, City 's damages for Subdivider's default shall be measured by the cost of complet i ng the requi red improvements. City may use the sums provided by the secu r ity for completion of the Improvements in accordance with the Improvement Plan s. c. In the event that Subdivider fails to cure any default under this Agreement within twenty (20) days after the City mails written notice of such default to Subdivider and Subdivider's surety, Subdivider authorizes City to perform the obligations for which Subdivider is i n default and agrees to pay the entire cost of such performance by City . d . City may take over the work and complete the Improvements by cont r act or by any other method the City deems appropriate , at the expense of Subdivider, and Subdivider's surety shall be liable to City for any excess cost or damages to City resulting therefrom . In such event, City, without liability for so doing, may take possess ion of and use any of Subdivider's materials, appliances, plant and other property that are at the work site and are necessary to complete the Public Improvements. e. Subdivider's failure to comply with the terms of thi s Agreement constitutes Subdivider's consent for the City to file a notice of violation against all lots in the Subdivision or to rescind or otherwise revert the subdivision to acreage . Subdivider specifically recogni zes that the determination of whether a reversion to acreage or recission of the subdivision approval constitutes an adequate remedy for Subdivider's default shall be w ithin City 's sole discretion. The remedy prov ided by this Subsect ion is in addition to all other P age 10 of 14 remedies available to City, and Subdivider agrees that the choice of remedy or remedies for Subdivider's breach shall be within City's discretion. f. In the event that Subdivider fails to perform any obligation under this Agreement, Subdivider agrees to pay all costs and expenses incurred by City in securing performance of those obligations, including but not limited to fees and charges of architects, engineers, attorneys and other professionals, and costs of suit and reasonably attorneys' fees . g. City's failure to take enforcement action with respect to a default, or to declare a breach, shall not be construed as a waiver of that default or breach or any subsequent default or breach by Subdivider. 19. SUBDIVIDER NOT AGENT OF CITY Neither Subdivider nor any of Subdivider's agents or contractors are or shall be considered to be agents of City in connection with the performance of Subdivider's obligations under this Agreement . 20. SUBDIVIDER TO WARN PUBLIC Until final acceptance of the improvements, Subdivider shall give good and adequate warning to the public of any dangerous condition of the Improvements, and shall take reasonable actions to protect the public from such dangerous condition. 21. NOTICES All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the second business day after the deposit thereof in the United States Mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests, or approvals from Subdivider to City shall be addressed to City at: City of Cupertino 10300 Torre Ave. Cupertino CA 95014 Attention: Public Works Director/City Engineer All notices, demands, requests, or approvals from City to Subdivider shall be addressed to Subdivider at : 11230 Bubb Rd. Cupertino, CA 95014 Attention : Robert Bigler 22. NO VESTING OF RIGHTS Performance by Subdivider of this Agreement shall not be construed to vest Subdivider's rights with respect to any change in any zoning or building law or ordinance . 23. TIME IS OF THE ESSENCE Time is of the essence in the performance of this agreement by subdivider. 24. NONDISCRIMINATION Pa g el l of 14 Subdivider, its agents, employees, contractors and subcontractors shall not discriminate in any way again st any person on the ba sis of age, sex, race, color, religion, sexual orientation, actual or perceived gender identity, disability, ethnicity, or national origin in connection with or related to the performance of this Agreement. 25. GOVERNING LAW AND ATIORNEY FEES This Agreement shall be interpreted under, and enforced by the laws of the State of California excepting any choice of law rules which may direct the application of laws of another jurisdiction . The Agreement and obligations of the parties are subject to all valid laws , orders, rules , and regulations of the authoritie s having jurisdiction over this Agreement (or the successors of those authoritie s). Any suits brought pursuant to this Agreement shall be filed with the courts of the County of Santa Clara , State of California. If City sues to compel Subdivider's performance of this Agreement, or to recover damages or costs incurred in completing or maintaining the work on the Improvements, Subdivider agrees to pay all attorneys' fee s and other costs and expenses of litigating incurred by the City, even if Subdivider subsequently resumes and completes the work. 26. RELATIONSHIP OF PARTIES Neither Subdivider nor any of its contractors, employees or agents shall be deemed to be agents of the City in connection with the Performance of Subdivider's obl igations under th is ag r eement . 27. SEVERABILITY The provisions of this Agreement are severable. If any portion of this Agreement is held invalid by a court of competent jurisdiction, the remainder of the agreement shall remain in full force and effect . 28. INTEGRATED AGREEMENT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the part ies hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereof. Any modification of this Agreement will be effective only by written execution signed by both City and Subdivider . All unchecked bo xes do not apply to this Agreement . IN WITNESS WHEREOF , the Parties have caused th is agreement to be executed by their respective, duly authorized officers on the date listed above. CITY OF CUPERTINO : Page 12 of 14 Approved as to form : fy~:o v(J,yr, Rocio Fierro Act i ng City Attorney Attach Notary acknowledgement fo r Subdivider's signatures : Attachment s: Exhibit "A"-Schedule of Bonds, Fee s , Depo sits Page 13 of 14 Timm Borden, P.E. Director of Public Works SUBDIVIDER : Robert A. Bigler, Tru stee Pun~Y. Exhibit A SCHEDULE OF BONDS , FEES, AND DEPOSITS Street Improvement Category: PART A . PART B. PART C. PART D. PART E. PART F. PARTG . PART H. PART I. Faithful Performance Bond : $270,000 Labor and Material Bond : $270,000 Checking and Inspection Fee : $27 ,000 (PAID $19,800) Development Maintenance Deposit : $0.00 Storm Drainage Fee $62 ,199.00 Storm Water Management Plan Fee : $1,208 .00 Map Checking Fee: $5,527 .90.00 (PAID) Park Fee: $31,500 Reimbursement Fee $0.00 Page 14 of 14 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness , accuracy, or validity of that document. State of California County of ~·7.<r ~ On __ C>_<:..._,_7 __ /_~,_, _)-::>_I_? __ before me , __ J_1-1-_· _f_~ ____ Cl:_._Jl.1. _ _,_1 __ rN_u_7_~ ___ p1-._~ __ 1_~ Date personally appeared Here Insert Name and Title of the Officer A &1~ 8 P7ANl7~ P ~/~re._ Name(s) of Signer(s) who 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. Place Notary Seal Above I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature __ ~----~_A.-..--___________ _ S~ of Notary Public ---------------OPTIONAL--------------- Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: _______ _ Number of Pages: Signer(s) Other Than Named Above: ____________ _ Capacity{ies) Claimed by Signer(s) Signer's Name: ____________ _ Signer's Name: ____________ _ D Corporate Officer -Title(s): ______ _ D Corporate Officer -Title(s): ______ _ D Partner -D Limited D General [l Partner -D Limited D General D Individual [ J Attorney in Fact D Individual L I Attorney in Fact D Trustee LJ Guardian or Conservator D Trustee [J Guardian or Conservator D Other: ______________ _ D Other: ______________ _ Signer Is Representing: _________ _ Signer Is Representing: ________ _ • ©2014 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document t o which this certificate is attached , and not the truthfulness , accuracy , or validity of that document. State of California } County of ~~ ~ } On (}CJ-z;~v 91 , ·~ 1 ~ before me , J vlLi ,A Pv-06-~ -~--~~-7C-:::=~==:;;:r.r;ro;;;-n;;;t:;;;::c;:;;e;:;-r ----- personally appeared J\ v0--v,.J-~c\ W'l who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrumen t 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 instrumen t the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENAL TY OF PERJUR Y under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Nota,y P~,e\,(..~ (Notary Public Seal) INSTRUCTIONS F OR C OMPL E TING THIS FORM A DDI TI ONAL OPTIO NAL IN FORM ATION Thisform complieswith curren t Ca liforni astatutesregardingnota,ywordingand, DE§C~IPTION OF THE ATTACHED DOCUMENT if needed. should be comp le ted and attached to the doc ument. Acknowledgm ents ~ & l. J c; (l'-t7v...J> •• ~. o ~ J from other states may be completed for doc uments be ing sent to that state so long L U51'-~..--/lv·_f\ · as the wording does not req uire the California nota,y to vio late Ca lifornia n ota,y ,9-,?l)~ ~ ¥LIJJ law. (Title or descriptio n of attac hed doc um en t) • State an d Co un ty infonnati on m ust be th e State and County where t he document M N -? Lt ~ . ~-lJDL{ signer(s) perso n all y a pp eared before t he notary _publ ic fo r acknowledgment. • Dat e of notanzat 1on mu st be the date that th e s1gner(s) pe rsonall y appeared wh ich must also be the same date the acknowledgment is co mpleted. (Title or descripti on of atta ched doc ume nt co ntinued) Number of Pages J.j_ Document Date 1 () ·' S. l 8 CAPACITY CLAIMED BY THE SIGNER ti Individual (s) D Corporate Officer (Title) D Partner(s) D Attorney-in-Fact o Trustee(s) 0 Other _________ _ 2015 Version www.NotaryClasses.com 800-873-9865 • Th e no tary pu b li c must print hi s or her name as it a pp ears withi n hi s or her co m miss ion fo ll owed by a co m ma an d the n yo ur titl e (notary publi c). • Print the name(s) of doc ume nt sig ner(s) who personall y appear at the time of not arization. • In di cate t he co rrect s in gul ar or pl ural fo rm s by c ro ssi ng off incorr ect fo nns (i.e . he/she/they, is /are) or circling th e correct fo nn s. Fai lure to corr ectly indi cate this informati on may lead to rejecti on of docum ent record in g . • The notary seal im press ion must be clear and photogra phica ll y repro d uc ible. Imp ressio n mus t not cover tex t or lin es. If seal im press ion smud ges, re -sea l if a suffic ient area p ermi ts , oth erw ise complete a different acknowledgment for m. • Signature of the notary pu blic must m atch the signature on fi le with the office of the co un ty c lerk. •!• Additiona l information is not required but could he lp to ensure th is acknowledgment is not mis used or attac hed to a differe nt document. •!• In d icate ti tle or ty pe of attac h ed docume nt, num be r of pages and date. •!• In d icate th e capac ity c lai med by the signer. If the clai med capac ity is a corporate officer, indi cate the titl e (i.e . CEO, CFO, Secretary). • Securely attach this document to the s igned doc ument w ith a staple. -.