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85-032 BAS Homes, Inc. development of Tract 7738 eastside of Stelling between Shadowhill & Robindell Reso 6542 and 6985T R A.0 T AGR E EMENT This AGREEMENT, made and entered into this !-'� day of �� , 19-=� by and between the CITY OF CUPERTINO, a municipal corporation of the State of California, hereinafter designated as CITY, and BAS HOMES, INC. hereinafter designated as DEVELOPER. W I T N E S S E T H WHEREAS, said DEVELOPER desires to subdivide certain land within the City of Cupertino in accordance with the map heretofore filed with the City Council of the City of Cupertino, marked and designated as Tract 7738, located on the east side of Stelling Road between Shadowhill and Robindell Way, Cupertino California, hereinafter designated as the "Tract"; and WHEREAS, said map shows certain courts, drives and roads which are offered for dedication for public use; and WHEREAS, CITY hereby approves the improvement plans and specifications prepared for the Tract by Civil Engineering Associates, a true copy of said improvement plans and specifications are on file in the Office of the City Engineer of Cupertino; and WHEREAS, the same are incorporated herein by reference, the same as though set out in full; NOW, THEREFORE, said improvement plans and specifications shall be hereinafter called the "Plans," and the work to be done under the Plans shall be called the "Work." Page 1 WHEREAS, pursuant to the provisijns 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 PART A. Faithful Performance Bond: $ 187,000.00 ONE HUNDRED EIGHTY-SEVEN THOUSAND AND N0/100 DOLLARS PART B. Labor and Material Bond: $ 187,000.00 ONE HUNDRED EIGHTY-SEVEN THOUSAND AND NO/100 DOLLARS PART C. Checking and Inspection Fee: $ 7,480.00 SEVEN THOUSAND FOUR HUNDRED EIGHTY AND NO/100 DOLLARS PART D. Indirect City Expenses: $ 1,120.00 ONE THOUSAND ONE HUNDRED TWENTY AND NO/100 DOLLARS PART E. Map Filing Fee $ 128.00 ONE HUNDRED TWENTY-EIGHT AND NO/DOLLARS PART F. Development Maintenance Deposit: $ 475.00 FOUR HUNDRED SEVENTY-FIVE AND NO/DOLLARS PART G. Storm Drainage Fee: $ 3,870.00 THREE THOUSAND EIGHT HUNDRED SEVENTY AND N0/100 DOLLARS PART H. One Year Power Cost: $ 72.00 SEVENTY-TWO AND N0/100 DOLLARS PART I. Street Trees: By DEVELOPER PART J. Park Fee: ZONE P2 $ 49,476.00 FORTY-NINE THOUSAND FOUR HUNDRED SEVENTY-SIX AND NO/100 DOLLARS PART K. Water Main Extension Deposit: N/A Page 2 NOW, THEREFORE, IT IS HEREBY MUTUALLY AGREED by and between the parties hereto as follows, TO WIT: 1. INSTALLATION OF WORK It is further agreed that: A. The DEVELOPER shall install and complete the Work within one (1) year from the date of execution of this AGREEMENT, or such longer period as may be specifically authorized in writing by the City Engineer. In the event the DEVELOPER fails or refuses to complete the Work within the specified period of time, the CITY, at its sole option, shall be authorized to complete the Work in whatever manner the CITY shall decide. In the event the CITY completes the Work, the CITY may recover any and all costs incurred thereby from the DEVELOPER or the DEVELOPER'S surety or both. 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 performed under the inspection and with the approval of the City Engineer. The work shall be done in accordance with the existing ordinances and resolutions of the City of Cupertino, 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 workmanship 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. Wherever the words "State" or "California Division of Highways" are mentioned in the State Specifications, it shall be considered as referring to the CITY of Cupertino; also wherever the "Director" or "Director of Public Works" is mentioned, it shall be considered as referring to the City Engineer. In case of conflict between the specifications of the CITY and/or the specifications of the CITY District shall take precedence over conflicting portions. 2. EXCAVATION PERMIT State Specifications and the the Cupertino Sanitary District, and/or the Cupertino Sanitary and be used in lieu of such 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 3 3-. QUITCLAIM DEED It is further agreed that the DEVELOPER, when requested by the CITY, shall quitclaim all his rights and interests in, and shall grant to CITY authorization to extract water from the underground strata laying beneath said project and DEVELOPER agrees to execute a "Quitclaim Deed and Authorization" in favor of CITY, when presented to him for signature. 4. BONDS AND OTHER SECURITY A. Upon the execution of this AGREEMENT, the DEVELOPER shall file with the CITY a faithful performance bond to assure his full and faithful performance of this AGREEMENT. The penal sum of said faithful performance bond 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 payment of all labor and materials required to construct said improvements. 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 so do. 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). 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 conditions of this AGREEMENT, or to make any payment, or any dedication of land, or any improvements herein required, the CITY may apply the proceeds of said security thereto. D. No release of surety bond, cash deposit, check, or certificate of deposit, shall be made except upon approval of the City Council. E. No interest shall be paid on any security deposited with the CITY. Page 4 5. CHECKING AND INSPECTION FEE . It is further agreed that DEVELOPER shall pay any and all necessary direct expenses for inspection, checking, etc., incurred by CITY in connection with said Project, and that DEVELOPER shall have deposited with CITY, prior to execution of this 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. 6. 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). 7. MAP FILING FEE It is further agreed that the DEVELOPER shall deposit with CITY, prior to execution of this AGREEMENT, for office checking of final map and field checking of street monuments, in compliance with Section 4:1 of Ordinance No. 47 (Revised 12/04/61) of CITY, the amount as set forth herein at Page 2 (Part I). 8. DEVELOPMENT MAINTENANCE DEPOSIT It is further agreed that the DEVELOPER shall pay to the CITY, prior to execution of this AGREEMENT, the amount set forth herein at Page 2 (Part E) as a development maintenance deposit to insure proper dust control and cleaning during the construction period. The development maintenance deposit may be utilized for repairs of defects and imperfections arising out of or due to faulty workmanship and/or materials 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. 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). 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 H), which amount represents the power cost for street lights for one year. Page 5 11. THE INSTALLATION OF STREET TREES It is further agreed that the DEVELOPER shall, at such time as deemed appropriate by the City Engineer, plant street trees in conformance with the standards of the City of Cupertino. Variety of tree shall be selected from the City approved list. 12. PARK FEES 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 3 herein. 13. MAINTENANCE OF WORK It is further agreed that the DEVELOPER shall maintain the Work: A. For a period of one (1) year after acceptance of the Work by the City Council of the City of Cupertino, or B. Until all deficiencies in the Work are corrected to conform to the Plans and the CITY standards and specifications for the Work, whichever is the later to occur. 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 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 bond to insure full and faithful performance of the construction 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. 15. BUSINESS AND PROFESSIONS CODE It is further agreed that DEVELOPER shall file with CITY, upon execution of this AGREEMENT, substantial evidence that all provisions of Section 11603, Article 8, Chapter 4 of the Business and Professions Code, pertaining 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 Protection 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 and five (5) year rental fee of said hydrants. Page 6 17. STREET LIGHTING - P. G. and E. RATE SCHEDULE SHALL APPLY It is further agreed that the DEVELOPER shall apply for the installation of electric power for street lighting at the earliest date possible. 18. PACIFIC GAS AND ELECTRIC/PACIFIC TELEPHONE AND TELEGRAPH 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 underground wiring circuits to all electroliers within said property and any and all fees required for undergrounding as provided in Ordinance No. 331 of CITY when 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 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 completion of the maintenance of the Work as provided in Paragraph 13 above, 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 Page 7 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 insurance 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 person; $300,000 each occurrence, property damage, $50,000 on account of any one occurrence with an aggregate limit of not less than $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 evidence of said foregoing policy or policies of insurance as shall be satisfactory to said City Engineer. Each such policy or policies shall bear an endorsement precluding the cancellation or reduction in coverage without giving the City Engineer at least ten (10) days advance notice thereof. C. In the event that the Project covered herein should be mutually situated in or affect the area of jurisdiction of a separate municipality or political subdivision of the State of California, the policies of insurance required herein and above shall co -name such municipality or political subdivision and the provision set forth herein and above for the protection of the CITY shall equally apply to municipality and political subdivision. 22. 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 September 9, 1977. 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 3, shall be the full amount due. 23. MAPS AND/OR IMPROVEMENT PLANS It is further agreed that the DEVELOPER shall furnish CITY with the following maps and/or plans at his own expense: A. A mylar sepia and seven (7) prints of fully executed parcel maps. B. A mylar sepia and thirteen (13) prints of fully executed tract maps. Page 8 C. A. mylar sepia and eleven (11) prints of fully executed improvement plans. D. A direct duplicating silver negative microfilm aperature card of all executed improvement plans and maps. It is agreed that the sepia, prints and microfilm of maps will be furnished within one month following recordation at the County of Santa Clara. It is also agreed that the sepia, prints and microfilm for improvement plans will be furnished within one month following the signing of the plans by the CITY. 24. TERMS AND CONDITIONS It is further agreed that the above named terms and conditions for the said Tract shall bind the heirs, successors, administrators or assigns of the DEVELOPER. The assignment of this AGREEMENT shall not be made without approval by the City Council of said CITY. IN WITNESS WHEREOF, affixed by its Mayor and resolution of the City caused his name to be written. CITY has caused its name to be hereunto City Clerk, thereunto duly authorized by Council and said DEVELOPER has hereunto affixed the day and year first above CITY OF CUPERTINO Approved as to form: STATE OF CALIFORNIA ) SS COUNTY OF SANTA CLARA) i On 4PIgIt- 1985, before me, the undersigned, a Notary PuGT1c in anclt o r TF -e State of Cal i f o r n i a, personally appeared Stephen R. Stern, known to me to be the the President of Bas Homes, Inc., the corporation that executed the within instrument and known to me to be the person who executed the within instrument on behalf of said corporation, said corporation being known to me to be one of the partners of BAS OF CUPERTINO III the partnership that executed the within instrument and acknowledged to me that such corporation executed the same as such partner and that such partnership executed the same. �cc�cc�i;.c�cc�cc�cc�cc�cc�i, c�c�cc�cc���z WITNESS my hand and official seal. OFFICIAL SEAL LENA FREEMAN Signature Ef `' NOTARY PUBLIC -CALIFORNIA L e a Freeman SANTA CLARA COUNTY My Commission Expires Mar. 10, 1987 �1 RESOLUTION NO. 6542 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO APPROVING THE FINAL MAP AND IMPROVEMENT PLANS OF TRACT NO. 7738 LOCATED ON THE EAST SIDE OF STELLING ROAD BETWEEN SHADOWHILL LANE AND ROBINDELL WAY; DEVELOPER, BAS HOMES, INC. ACCEPTING CERTAIN EASEMENTS; AUTHORIZING SIGNING OF FINAL MAP AND IMPROVEMENT PLANS; AUTHORIZING THE EXECUTION OF AGREE- MENT IN CONNECTION THEREWITH WHEREAS, there has been presented to the City Council for approval and for authorization to record final map of Tract No. 7738 located along the east side of Stelling Road between Shadowhill Lane and Robindell Way showing certain avenues, drives, places, and roads by BAS Homes, Inc.; 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. 7738, be and the same are hereby approved. b. The offer of dedication for roadway and for easements is hereby accepted. c. The City Engineer and the City Clerk are hereby authorized to sign said final map. d. The City Engineer 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. -1- PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 15th day of April , 1985 by the following vote: Vote Members of the City Council AYES: Gatto, Plungy, Rogers NOES: None ABSENT: Johnson, Sparks ABSTAIN: None ATTEST: /s/ Dorothy Cornelius City Clerk APPROVED: /s/ Barbara A. Rogers Mayor, City of Cupertino Pro -Tempore -2- RESOLUTION NO. 6524 EXHIBIT "A" SCHEDULE OF BOND, FEES, AND DEPOSITS DEVELOPMENT: Tract No. 7738 BAS Homes, Inc. LOCATION: East side of Stelling Road between Shadowhill Lane and Robindell Way A. Faithful Performance Bond: $187,000.00 One Hundred Eighty -Seven Thousand and no/100 Dollars B. Labor and Material Bond: $187,000.00 One Hundred Eighty -Seven Thousand and no/100 Dollars C. Checking and Inspection Fee: $ 7,480.00 Seven Thousand Four Hundred Eighty and no/100 D. Indirect City Expenses: $ 1,120.00 One Thousand One Hundred Twenty and no/100 Dollars E. Map Filing Fee_ $ 128.00 One Hundred Twenty-eight and no/100 Dollars F. Development Maintenance Deposit: $ 475.00 Four Hundred Seventy and no/100 Dollars G. Storm Drainage Fee: $ 3,870.00 Three Thousand Eight Hundred Seventy and no/100 Dollars H. One Year Power Cost: $ 72.00 Seventy-two and no/100 Dollars I. Street Trees: By Developer J. Park Fee: Zone P2 $ 49,476.00 Forty-nine Thousand Four Hundred Seventy-six and no/100 Dollars K. Water Main Extension Deposit N/A -3- �ECEIV� AGREEMENT 77) STEVENS CREEK BOULEVARD @ PASADENA AVENUE SEP 15 1985' BAS HOM756 This AGRED= made and entered into this 6 jh day of October 19 86 , by and between the CITY OF CUPERTIM, a municipal corporation of the State of California, hereinafter designated as CITY, and B.A.S. HOMES hereinafter designated as DEVELOPER. WITNESSETH WHEREAS, the DOPER has made application to the CITY for a BUILDING PERMIT to construct and maintain a COMMERCIAL DEVELOPMENT hereinafter referred to as "Project." WHEREAS, CITY herby approves the improvement plans and specifications prepared for the Project by CIVIL ENGINEERING ASSOCIATES ; a true copy of which improvement plans and specifications are on file in the office of the City Engineer.of Cupertino; and WHEREAS, the same are incorporated herein by reference, the same as though set out in full; NOW, -RE, said improvement plans arra specifications shall be hereinafter called the "Plans," and the work to be done under the Plans shall be called the "Work." 1 WHEREAS, pursuant to the provisions of this AGREEmmr, the CgTy hereby established the amounts of Bonds, Fees, and Deposits as set forth in the following schedule: •� 171• • : •1 •. 7171 � •l:i' •. Street ImproveAent Category: PART A. Faithful Performance Bond: $40,000.00 FORTY THOUSAND AND N0/100 DOLLARS PART B. Labor and Material Bond: $40,000.00 FORTY THOUSAND AND N0/100 DOLLARS PART C. Checking and Inspection Fee: $ 2,400.00 TWO THOUSAND FOUR HUNDRED AND N0/100 DOLLARS PART D. Indirect City Expenses: $ 360.00 THREE HUNDRED SIXTY AND N0/100 DOLLARS PART E. Developent Maintenance Deposit: $ 1,000.00 ONE THOUSAND AND N0/100 DOLLARS PART F. Storm Drainage Fee: $ 902.00 NINE HUNDRED TWO AND N0/100 DOLLARS PART G. One Year Power Cost: $ 108.00 ONE HUNDRED EIGHT AND N0/100 DOLLARS PART H. Street Trees: By Developer PART I. Map Checking Fee: _ PART J. Park Fee: PART K. Water Main Extension Deposit: $ 1,040.00 ONE THOUSAND FORTY AND. N0/100 DOLLARS PART L. Maps and/or Inprovement Plans: - 2 • i 191 X71 •) J10 171' 91: 1 • e1' 91710 • • • - - - - 1. DEDICATION A. The DEVELOPER offers to dedicate the real property shown on Exhibit "A", which is attached hereto and made a part hereof by reference. Said dedicated _property shall be free and clear of all liens or encumbrances except those which the CITY shall waive in writing. The DEVELOPER agrees not to revoke said offer of dedication, and to keep said offer open until the CITY accepts offer by resolution. B. Upon execution of this AGREEi= the DEVELOPER agrees to deliver a properly executed grant deed to the CITY of the real property described in Exhibit "A", and such other executed conveyances, or instruments necessary to convey clear title as herein required. The DEVELOPER shall provide, at the DEVELOPER'S sole cost and expense, to the City: (1) A preliminary title report issued by a title insurance company relating to the property offered for dedication. (2) A standard policy of title insurance issued by a title insurance caMPanY and insuring the CITY in the sum of: N/A, and which shall show said property free and clear of all liens or encumbrances except those as the CITY shall expressly waive in writing; said policy shall be furnished at the time of acceptance of dedication and recordation of deed. C. Upon the condition precedent that the DEVELOPER shall Perform each and every covenant and condition of this AGFa22=, the CITY agrees to accept said real property offered for dedication. 2. INSTAL r UICN OF WC PK It is further agreed that: A. The DEVELOPER shall install arra complete the Work within one (1) year from the date of execution of this AGREEMENT; or such longer period as may be specifically authorized in writing by the City Engineer. In the event the DEVELOPER fails or refuses to complete the Work within the specified period of time, the CITY, at its sole option, shall be authorized to ccuplete the Work in whatever manner the CITY shall decide. In the event the CITY ccnpletes the Work, the CITY may recover any and all costs incurred thereby from the DEVELOPER or the DEVELOPER'S surety or both. B. The DEVELOPER shall install and ccuplete 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 arra in accordance with all plans, specifications, standards, sizes, lines, and grades approved by the City Engineer. The Work shall be done in accordance with all State and County Statutes applicable hereto. The decision of the City Engineer shall be final as to whether any material or workmanship meets the standards, specifications, plans, 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. Wherever the words "State" or "California Division of Highways" are mentioned in the State Specifications, it shall be considered as referring to the CITY of Cupertino; also wherever the "Director" or "Director of Public Works" is mentioned, it shall be considered as referring to the City Engineer. In case of conflict between the State Specifications and the specifications of the CITY and/or the Cupertino Sanitary District, the specifications of the CITY and/or the Cupertino Sanitary District shall take precedence over and be used in lieu of such conflicting portions. It is further agreed that the DEVELOPER shall ccnply with Section Three of Ordinance No. 130 of the CITY by obtaining an excavation permit from the City Engineer before the ccmmencement 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 ccmTence. It is further agreed that the DEVELOPER, when requested by the CITY, shall quitclaim all his, --rights and interests in, and shall grant to CITY authorization to extract water frcm the underground strata lying beneath said project and DEVELOPER agrees to execute a "Quitclaim Deed and Authorization" in favor of CITY, when presented to him for signature. A. Upon the execution of this AGREEMENT, the DEVELOPER shall file with the CITY a faithful performance bond to assure his full and faithful performance of this AGREEMENT. The penal sum of said faithful performance bond 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 CI'T'Y a labor and materials bond in a penal sum adequate to assure full payment of all labor and materials required to construct said improvements. 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 AGREE�'r or otherwise indemnify the CITY for the DEVELOPER'S failure to so do. 4 B. In lieu of a surety bond, the DEVELOPER may elect to secure this AGREE= 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 iunstrument of credit meeting the requirements of Government Code Section 66499 (b) or (c} - C. The amount of said cash, checks, certificate of deposit, or instrument of credit shall be as designated by the City Engineer, and shall be the equivalent to that which would have been required had the DEVELOPER furnished- the CITY with a surety bond. In the event that the DEVELOPER shall fail faithfully to perform the covenants and conditions of this AGREEMEM, or to hake any payment, or any dedication of land, or any improvements herein required, the CITY may apply the proceeds of said security thereto. D. No release of surety bond, cash deposit, check, or certificate of deposit, shall be made except upon approval of the City Council. E. No interest shall be paid on any security deposited with the CITY. Cwt*,II I�►, s ►i� r►ti �aaY �;. y� It is further agreed that DEVELOPER shall pay any and all necessary direct expenses for inspection, checking, etc., incurred by CITY in connection with said Project, and that DEVELOPER shall have deposited with CITY, prior to execution of this AGREEMEN7, the amount as set forth herein at Page 2 (Part C). Should constnicticn cost vary materially from the estimate from which said stun is calculated, the City Engineer shall notify DEVELOPER of any additional stun due and awing as a result thereof. � � ■ as a►�- � �. It is further agreed that DEVELOPER shall pay to CITY, prior to execution of this AGEM=, indirect expense allocable to processing these improvements, the aman7t as set forth herein at Page 2 (Part D). It is further agreed that the DEVELOPER shall deposit with CITY, prior to execution of this AGREMMEN'I', for office checking of final map and field checking of street monuments, in ccmpliance with Section 4:1 of Ordinance No. 47 (Revised 12/04/61) of CITY, the amount as set forth herein at Page 2 (Part I). Wi •I �1 • ' 1�1 I• � �1 I• •1 � �1`h It is further agreed that the DEVELOPER shall pay to the CITY, prior to execution of this AFI', 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 development maintenance deposit may be utilized for repairs of defects and imperfections arising out of or due to faulty workmanship and/or materials appearing in said work during the period until release of the improvement bonds by the CITY. Should the DEVELOPER Mets the required repairs to the entire satisfaction of the CITY, the unused balance will be returned after the release of the improvement bonds. 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) . 1*5 NO J: 42; y/. •% �Y0:N&IC•►isi-1����My 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 the adopted Water Master Plan. The amount shown herein at Part K, Page 2, shall be the full amount due. It is further agreed that the DEVELOPER shall pay to CITY prior to execution of this AGREEMERI', the amount as set forth herein at Page 2 (Part G), which amount represents the power cost for street lights for one year- 13. am'13. THE INSTALLATION A'T ION OF STREET TIREELS It is further agreed that the DEVELOPER shall, at such time as deemed appropriate by the City Engineer, plant street trees in conformance with the standards of the City of Cupertino. Variety of tree shall be selected from the City approved 1 ist . 14. PARK FEES It is further agreed that the DEVELOPER shall pay such fees and/or dedicate such lam to the CI'T'Y, prior to execution, as is required within "Park Dedication Ordinance" Number 602, 1972, arra which is further stipulated under Part J, Page 2 herein. 0 It is further agreed that the DEVELOPER shall maintain the Work until all deficiencies in the Work are corrected to conform to the Plans and the City standards and specifications for the Work. The DEVELOPER shall, upon written notice thereof, immediately repair or replace, without cost or obligation to the City of CqDertino, 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. 16. SANITARY DISTRICT It is further agreed that the DEVELOPER execution of this AGREIIEF!', a letter from the stating that the DEVELOPER has entered into a said District to install sanitary sewers to Project and stating that a bond to insure ful: the construction of the said sanitary sewers said sanitary sewer in conformance with the Paragraph 15 above has been filed. shall file with CITY, upon Cupertino Sanitary District separate AGREE!= with the serve all lots within said and faithful performance of and to insure maintenance of provisions as set forth in It is further agreed that DEVELOPER shall file with CITY, upon execution of this Ate', substantial evidence that all provisions of Section 66493, Article 8, Chapter 4 of the Government Cade, pertaining to special assessments or bonds, have been complied with. It is further agreed that the DEVELOPER shall file with the CITY, upon execution of this AGREEMENT, a letter from the Central Fire Protection 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 and five (5) year rental fee of said hydrants. 19. PACIFIC GAS AND F'1'E=C/PACIFIC BTUT, It is further agreed that the DEVELOPER shall pay to Pacific Gas and Electric Company and/or to PACIFIC SELL Ccapany any and all fees required for installation of overhead and/or underground wiring circuits to all electroliers within said property and any and all fees required for undergrounding as provided in Ordinance No. 331 of CITY when DEVELOPER is notified by either the City Engineer or the Pacific Gas and Electric Company and/or PACIFIC HELL Company that said fees are due and payable. VA 2 0 . EASEMENT'S AND RIGHI'-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 -Tway, that the DEVELOPER shall deposit with CITY a sum covering the reasonable market value of the land proposed to be taken and to be included in said sun 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. It is further agreed that, commencing with the performance of the Work by the DEVELOPER or his contractor and continuing until the completion of the 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 DEVEIDPER'S agents, employees and independent contractors. 22. INSURANCE It is further agreed that: The M=DPER 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 ply 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 insurance against the loss covered by said policy or policies, that other insurance shall be excess insurance only. 8 A. Each of said policies of insurance shall provide coverage in the following minim= amounts: For bodily injury, $100,000 each person; $300,000 each occurrence, property damage, $50,000 on account of any one occurrence with an aggregate limit of not less than $200,000. B. The DEVELOPER shall file with the City Engineer at or prior to the time of execution of this AGREEt= by the DEVELOPER such evidence of said foregoing policy or policies of insurance as shall be satisfactory to said City Engineer. Each such policy or policies shall bear an endorsement precluding the cancellation or reduction in coverage without giving the City Engineer at least ten (10) days advance notice thereof. C. In the event that the Project covered herein should be mutually situated in or affect the area of jurisdiction of a separate municipality or political subdivision of the State of California, the policies of insurance required herein and above shall co -name such municipality or political subdivision and the provision set forth herein and above for the protection of the CITY shall equally apply to municipality and political subdivision. 23. MAPS AND/OR It is further agreed that the CITY shall obtain the following map and/or plans at the M7=PER'S expense: A. A mylar sepia and seven (13) prints of fully executed parcel map. B. A mylar sepia and ten (11) prints of fully executed improvement plans. C. A direct duplicating silver negative microfilm aperature caul of all executed improvement plans and map. The DEVELOPER agrees to pay the CITY from the develcpuent maims deposit the cost for all prints of plans and map required under Item 23. This AGREEMENT shall bind the heirs, administrators, executors, successor, assignee and transferrees of the DEVELOPER. The assigrment of this AGREEMENT shall not be made without approval by the City Council of the City of CgDertino. 9 IN WIr=S WI=F, CITY has caused its name to be hereunto affixed by its Mayor and City Clerk, theresnto 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. Approved as to form: mv F -A PA ��"A ZZ STATE OF CALIFORNIA ) SS COUNTY OF SANTA CLARA) N • • ' �1'J ■ '• 4 r City Clerk DEVEL(JPER: BERLAND-ONE, a California Limited Partnership BY: bas Homes, Inc.,general partner r On '9V_'0t¢.mbe1, 14a, , 1986, before me, the undersigned, a Notary Public in and for the State of California, personally appeared Stephen R. Stern, known to me to be the President of bas Homes, Inc., the corporation that executed the within instrument and known to me to be the person who executed the within instrument on behalf of said corporation, said corporation being known to me to be one of the partners of Berland -One, the partnership that executed the within instrument, and acknowledged to me that such corporation executed the same as such partner and that such partnership executed the same. WITNESS my hand and official seal. cc�c�cc�ccx�s�c�cc�c�cc�cc�; u OFFICIAL SEAL'LENA FREEMAN NOTARY PUBLIC -CALIFORNIA SignaturSANTA CLARA COUNTY e'neeman My Commission Expires Mar. 10, 1987 1-2 RESOLUTION NO. 6985 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO APPROVING FINAL PLAN FOR THE IMPROVEMENT OF FRONTAGE LOCATED ON STEVENS CREEK BOULEVARD AT PASADENA AVENUE DEVELOPER, BAS HOMES, INC. AUTHORIZING THE CITY ENGINEER TO SIGN THE FINAL PLAN: AND AUTHORIZING EXECUTION OF AGREEMENT IN CONNECTION THEREWITH WHEREAS, there has been presented to the City Council for approval of the final plan for the improvement of street frontage located on Stevens Creek Boulevard at Pasadena Avenue by BAS Homes Inc.; and WHEREAS, there has been presented to the City Council a proposed agreement for the construction of streets, curbs, gutters, sidewalks, 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 agree- ment; and said plan, agreement, and bonds having been approved by the City Attorney; NOW, THEREFORE, BE IT RESOLVED that said final plan for the improve- ment of street frontage on Stevens Creek Boulevard at Pasadena Avenue be and the same is, hereby, approved; and the City Engineer is hereby authorized to sign said final plan; and the Mayor and the City Clerk are hereby authorized to execute the agreement herein referred to in behalf of the City of Cupertino. PASSED AND ADOPTED this 6th day of October 19 86 by the following vote: Vote Members of the City Council AYES: Gatto, Johnson, Plungy, Sparks, Rogers NOES: None ABSENT: None ABSTAIN: None ATTEST: /s/ Dorothy Cornelius City Clerk APPROVED /s/ Barbara A. Rogers _ Mayor EXHIBIT "A" DEVELOPMENT COMMERCIAL BAS HOMES, INC. LOCATION STEVENS CREEK RnTTTFVARD AT PASADENA AVENUE A. Faithful Performance Bond: $ 40,000.00 FORTY THOUSAND AND NO/ 100 DOLLARS B. Labor and Material Bond: $ 40,000.00 FORTY THOUSAND AND NO/ 100 DOLLARS C. Checking and Inspection Fee: $ 2,400.00 TWO THOUSAND FOUR HUNDRED AND NO/100 DOLLARS D. Indirect City Expenses: $ 360.00 THREE HUNDRED SIXTY AND N0/100 DOLLARS E. Development Maintenance Deposit: $ 1,000.00 ONE THOUSAND AND N0/100 DOLLARS F. Storm Drainage Fee: $ 902,00 NINE HUNDRED TWO AND N0/100 DOLLARS G. One Year Power Cost: $ 108.00 ONE HUNDRED EIGHT AND N0/100 DOLLARS H. Street Trees: By Developer I. Map Checking Fee: J. Park Fee: K. Water Main Extension Deposit: $ 1,040.00 ONE THOUSAND FORTY AND N0/100 DOLLARS L. Maps and/or Improvement Plans: