85-052 HW and Associates Tract 7728 developmentVista Hills Townhomes, Reso 6694T R A C T A G R E E M E N T
OLIVE AVENUE
This AGREEMENT, made and entered into this 4th day of
_— November 19 85 by and between the CTIY OF CUPERTINO, a
municipal corporation of the State of California, hereinafter designated as CITY
and HW AND ASSOCIATES INVESTMENT COMPANY, hereinafter designated
a i ornia imi e ar ners ip
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 Tract _7728 — 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 ALLIED ENGINEERING COMPANY
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, 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 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
PART A: Faithful Performance Bond:- Off site $ 46,000
Forty Six Thousand and no/100 Dollars
On site $ 67,000
Sixty Seven Thousand and no/100 Dollars
Irrigation/Landscape $ 20,000
Twenty Thousand and no/100 Dollars
PART B: Labor & Material Bond: - Off site $ 46,000
Forty -Six Thousand and no/100 Dollars
On site $ 67,000
Sixty Seven Thousand and no/100 Dollars
Irrigation/Landscape $ 20,000
Twenty Thousand and no/100 Dollars
PART C: Checking/Inspection Fee: - Off site $ 1,840
One Thousand Eight Hundred Forty and no/100 Dollars
On site $ 2,680
Two Thousand Six Hundred Eighty and no/100 Dollars
Irrigation/Landscape $ 800
Eight Hundred and no/100 Dollars
PART D: Indirect City Expense: - Off site $ 276
Two Hundred Seventy Six and no/100 Dollars
On site $ 402
Four Hundred and Two and no/100 Dollars
Irrigation/Landscape $ 120
One Hundred Twenty and no/100 Dollars
PART E:
Map Filing Fee:
$
128
One Hundred Twenty Eight and no/100 Dollars
PART F:
Development Maintenance Deposit:
$
460
Four Hundred Sixty and no/100 dollars
PART G:
Storm Drainage Fee:
$
2,056
Two Thousand
Fifty Six and no/100 Dollars
PART H:
One Year Power Cost:
$
36
Thirty
Six and no/100 Dollars
PART I:
Street Trees:
N/A
PART J:
Park Fees:
$ 28,728_
Twenty
Eight Thousand Seven Hundred Twenty Eight 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 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.
2. 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
Lurther agreed that the DEVELOPER shall notify the City Engineer of
the exact date and time when the oroposed 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
dedicated, and any improvements to be mad
In the event that improvements are tc
AGREEMENT, the DEVELOPER shall, in'addit
performance, file with the CITY a labor and
penal sum adequate to assure full payor,
materials required to construct said imprc
said bonds shall be as designated by the Ci
shall be executed by a surety company auth
surety business in the State of California
the City Attorney as to form and by t
sufficiency. In the event that the DEVELOPER
to perform the covenants and conditions of
any land agreed to be
a under this AGREEMENT.
be made under this
ion to said faithful
materials bond in a
ant of all labor and
7ements. The amount of
:y Engineer. Said bonds
Drized to transact a
and must be approved by
ie City Engineer as to
shall fail faithfully
_his AGREEMENT, or to
maxe any UaYL11C11L-, uL ally ueulcaLlon oz lana, 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. PARR 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.
12.a. PARK FEE ADJUSTMENT PROVISIONS
The value of the land used in establishing the "Park Fee" outlined herein on Page 2,
Part J, requires formal confirmation. The City will employ a qualified local
appraiser to provide a market .value of the land. The City will calculate the "Park
Fee" based on the appraisal. The Developer agrees to pay for any deficiency within
thirty (30) days and the City agrees to refund overage within thirty (30) days.
Adjustments shall be made prior to acceptance of the subdivision improvements.
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 a
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.
PAGE 6
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 2 herein.
13. MAINTENANCE OF WORK
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 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 a
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. GOVERNMENT CODE
It is further agreed that DEVELOPER shall file with CITY, upon
execution of this AGREEMENT, substantial 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.
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.
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
Page 7
i= -s u_ther a g r _gid =:.-_. The DEVELOPER shall _ake cut, 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 Mork
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
Mork 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 E, Page 3, shall be the full
amount due.
PAGE 8
It is further agreed that the DEVELOPER shall furnish CITY wiz.h
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.
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, CITY has caused its name to be hereunto
affixed 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.
EDGMENT
CITY"OF CUPERTINO
Z--�n n nn l
On this the day of
SS.
i
the unde fined Notary
L96�C7i::C`Ji;::✓G C, t`,.��C U � �_�t;.:' �:,.; G,v� :t9b>(9 fvy�.
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SANTA CLARA COUNTY
My Commission Expires Feb. 8, 1988
blic, personalIq appeared
f.
NO. 201
19 before me,
❑ personally known to me V
V- proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) s bscribed to the
within instrument, and acknowledged that executed it.
WITNES -d and official seYL-AZI�4�6e�
NotaWs(Wgnature
7110 122 NATIONAL NOTARY ASSOCIATION • 23012 Ventura Blvd. • P.O. Box 4625 •Woodland Hills, CA 91364
RESOLUTION NO. 6694
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
APPROVING THE FINAL MAP AND IMPROVEMENT PLANS OF TRACT NO.
7728 LOCATED ON OLIVE AVENUE; DEVELOPER, HW AND ASSOCIATES
INVESTMENT CO., A CALIFORNIA LIMITED PARTNERSHIP; ACCEPT-
ING CERTAIN EASEMENT; AUTHORIZING SIGNING OF FINAL MAP
AND IMPROVEMENT PLANS; AUTHORIZING THE EXECUTION OF
AGREEMENT IN CONNECTION THEREWITH
WHEREAS, there has been presented to the City Council for approval
and for authorization to record final map of Tract No. 7728 located on
Olive Avenue showing certain avenues, drives, places, and roads by HW
and Associates Investment Co., A California Limited Partnership; 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. 7728, 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.
PASSED AND ADOPTED at a regular meeting of the City Council of the
City of Cupertino this 4th day of November , 1985, by the following
vote:
Resolution No. 6694
VOTE MEMBERS OF THE CITY COUNCIL
AYES: Gatto, Plungy, Rogers, Sparks, Johnson
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST: APPROVED:
/s/ Dorothy Cornelius
City Clerk
/s/ Phil N. Johnson
Mayor, City of Cupertino
Resolution No. 6694
EXHIBIT "A"
SCHEDULE OF BOND, FEES, AND DEPOSITS
DEVELOPMENT: Tract No. 7728 (Town Houses)
DEVELOPER: HW and Associates Investment Co., A California
Limited Partnership
LOCATION OLIVE AVENUE
Part A: Faithful Performance Bond: Off Site $ 46,000
Forty Six Thousand and no/100 Dollars
On Site
Sixty Seven Thousand and no/100 Dollars
$
67,000
Irrigation/
Twenty Thousand and no/100 Dollars Landscape
$
20,000
PART B: Labor and Material Bond: Off Site
$
46,000
Forty -Six Thousand and no/100 Dollars
On Site
$
67,000
Sixty Seven Thousand and no/100 Dollars
Irrigation/
Landscape
$
20,000
Twenty Thousand and no/100 Dollars
PART C: Checking/Inspection Fee: Off Site
$
1,840
One Thousand Eight Hundred Forty and no/100 Dollars
On Site
$
2,680
Two Thousand Six Hundred Eighty and no/100 Dollars
Irrigation/
$
800
Landscape
Eight Hundred and no/100 Dollars
PART D: Indirect City Expense: Off Site
$
276
Two Hundred and Seventy Six and no/100 Dollars
On Site
$
402
Four Hundred and Two and no/100 Dollars
Irrigation/
Landscape
$
120
One Hundred Twenty and no/100 Dollars
PART E: Map Filing Fee:
$
128
One Hundred Twenty Eight and no/100 Dollars
PART F: Development Maintenance Deposit
$
460
Four Hundred Sixty and no/100 Dollars
PART G: Storm Drainage Fees:
$
2,056
Two Thousand Fifty Six and no/100 Dollars
Resolution No. 6694
PART H: One Year Power Cost: $ 36
Thirty Six and no/100 Dollars
PART I: Street Trees: N/A
PART J: Park Fees: $ 28,728
Twenty Eight Thousand and Seven Hundred Twenty Eight and
no/100 Dollars
PARK K: Water Main Extension Deposit: N/A
RESOLUTION NO. 6791
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
APPROVING THE AMENDED MAP OF TRACT NO. 7728 LOCATED ON
OLIVE AVENUE; DEVELOPER, HW AND ASSOCIATES INVESTMENT CO.,
A CALIFORNIA I TED PARTNERSHIP
WHEREAS, there has been presented to the City Council the Amended Map
of Tract No. 7728, located on Olive Avenue, conforming the townhouse lots
to the revised building footprints approved by the Planning Department.
NOW, THEREFORE, BE IT RESOLVED that said Amended Map of Tract No. 7728
is hereby approved and the City Engineer and the City Clerk are hereby
authorized to sign said map.
PASSED AND ADOPTED at a regular meeting of the City Council of the
City of Cupertino this 17th day of March 1986 by the following
vote:
Vote Members of the City Council
AYES: Gatto, Johnson, Plungy, Sparks, Rogers
NOES: None
ABSENT: None
ABSTAIN: None
/s/ Barbara A. Rogers
Mayor, City of Cupertino
ATTEST:
/s/ Dorothy Cornelius
City Clerk
RETURN TO CITY
OF CUPERTINO
10304 TORRE AVEFO:
COPY�`,UPR "INO. CA 95014 ENDORSED Ft�D
C::��
NO 1rVit IN ACCORDANC ATR ll iF
'i OU*
WITH SOV C-'-. RESCISSION AND RELEASE OF
PARTICIPATION AGREEMENT AUG z 4 3� 1
CITY OF CUPERTINO BELOW- o F r i G r' . L 3�
SANTA- C.1_1
MARKT RATE HOUSING PROGRAM
�?r C, P";
This RESCISSION AND RELEASE OF PARTICIPATION AGREEMENT CITY OF
CUPERTINO BELOW-MARFET RATE HOUSING PROGRAM (hereinafter referred to as
the Participation Agreement) is made and entered this day of
1986, by HW and Associates Investment Co., a California
Limited Partnership (hereinafter referred to as the "Developer") and the
City of Cupertino, a municipal corporation of the State of California
(hereinafter referred to as the "City").
A. WHEREAS, the parties have previously executed a PARTICIPATION
AGREE= on the 15th day of November, 1985, and caused said document to
be recorded with the County Recorder of Santa Clara County at Book J541,
Page 1130 Records (Document 8618630);
B. WHEREAS, the said agreement constitutes an encumbrance on the
Developer's real property located in the City of Cupertino, County of
Santa Clara, State of California, more particularly described as:
Lot 4 of Tract 7728, Vista Hills Townhomes, which
map was recorded April 1, 1986 in Book 557 of maps
at pages 49 through 50 Santa Clara County Records.
C. WHEREAS, the parties now desire to rescind said agreement and
release said encumbrance due to the fact that the Developer has paid fees
in lieu of participating in the City's Below -Market Rate Housing Program.
9 a� t L� ���' -MR
NOW, THEREFORE, in furtherance of the foregoing recitals, Developer
and City do hereby agree as follows:
1. The Participation Agreement executed by the parties on the 15th
day of November, 1985, is hereby rescinded and the terms thereof shall
have no further force and effect.
2. All encumbrances and covenants described in said agreement which
attaches to the Developer's real property as previously described are
hereby released.
3. Recordation of this Agreement in the Office of the County
Recorder of the County of Santa Clara shall be accomplished upon its
execution.
IN WITNESS WHEREOF, the parties heretohave executed this agreement
on the day and year first written.
"City"
CITY OF CUPERTINO, a
municipal corporation
of the State of California
by -
Its
PARTNERSHIP ACKNOWLEDGMENT
"Developer"
HW AND ASSOCIATES INVES=iT CO.
a California Limited Partnership
by
T+ -,n a _ _ _ zp-
NO. 203
-�
State of t On this the day of����� 190!%, before me,
SS.
County of P of `
the undersigned 'Notary Pu/blic, personally appeared
A,
impersonally known to me
OFFICIAL SEAL El proved to me on the basis of satisfactory evidence
Dorothy Marie Cornelius to be the person(s) who executed the within instrument on behalf of the
Nl)fA'y PUBLIC - CALIFORNIA partnership, and acknowledged to me that the partnership executed it.
SANTA CLARA COUNTY WITNES my and and official seal.
My Commission Expires April 1, 1988
I
C�Gc9f;.C9G�t9L`C9CC9G:t9G:t9��9G:C9�C9r;`t'3'�:U�p G /�i� //— /� CC-�J
Nota 's Signature
7130122 NAIIUIVHL IVUIHHT HJJVI'IHIIVIV - 1-11 velltula -- - r.v. — - 1-
NO FE7- IN
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PARTICIPATION AGREEMENT
13 LARA
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OUJi
CITY OF CUPERTINO BELOW MARKET RATE HOUSING
PROGRAKECORI)
ER
This Agreement made
and entered into this
/5; day of
1985, by and between the City of Cupertino,
California (hereinafter "City") and HW and Associates
Investment Co., a California Limited Partnership (hereinafter
"Developer"), witnesseth:
Whereas, Developer is the owner and developer of that
parcel of real property commonly known as Tract 7728, Vista
Hills Townhomes, and Assessor's Parcel Number 357-19-038 and
357-19-039 Cupertino, California;
Whereas, Developer proposes to develop a fourteen (14)
unit, multiple family, residential housing project (hereinafter
"project") on above-described property;
Whereas, on October 15, 1984, the City Council of the
City of Cupertino, by adoption of Tentative Map No. 7 -TM -84
approved the development of said property in a manner consis-
tent with the terms and conditions herein contained, one of
such conditions being Developer's participation in the Below
Market Rate (BMR) Housing Program of the City of Cupertino; and
Whereas, it is the intention of both parties to set
forth the covenants, conditions and restrictions applicable to
BMR Program participation in this separate document.
J541PAGE113-.1_
Now, therefore, in consideration of the foregoing, and
of the mutual terms and covenants hereinafter set forth, the
parties hereby agree that developer shall participate in the
above-described program, subject to the following terms and
conditions:
1. SATISFACTIONS OF CONDITIONS. City hereby agrees
that execution, recordation and performance of this Agreement
shall constitute performance of those conditions of subdivision
approval for the project which relate to sale of units pursuant
to the City's BMR Program and the incorporation of related
terms in the organizational documents for the project, and
shall be sufficient in that respect to permit recordation of
the final subdivision map, subject to City Council approval of
said final map, satisfaction of all other applicable conditions
and compliance with all provisions of law.
2. SALE OF UNITS. Developer hereby agrees that it
shall offer a unit for sale, based upon the unit description,
as shown below, to households qualified by the City or its
designee pursuant to the City's Below Market Rate Housing
Program and the guidelines established thereunder. The sales
price of the unit shall be established ninety (90) days prior
to the projected date of occupancy according to the formula set
in the City policy based on the median income levels for Santa
Clara County as published by the San Francisco Office of the
U. S. Department of Housing and Urban Development which will be
in effect on the projected date of Certificate of Occupancy.
2
J541FA6E-132
Developer further agrees to insert in any deed or other convey-
ance of said unit those certain terms, conditions and restric-
tions attached hereto as "Exhibit A" and incorporated herein by
this reference
Tract Number Lot -Number Unit Type, No. Bedrooms
7728 4 1358 Square feet, 2 bedrooms
3. PAYMENT OF FEES IN LIEU OF SALE OF UNIT. City and
Developer understand that the City is presently contemplating
changes in the City's established BMR Program which, if adopt-
ed, could change Developer's obligation from selling a unit
under procedures such as established herein to the payment of a
fee or tax based upon the size of the project. If such program
is changed by the City prior to the time Developer sells its
BMR unit hereunder, the Developer may, subject to the approval
of the City, pay the fee or tax established under the revised
program in lieu of selling the unit. If Developer exercises
such option, the City, upon payment by Developer, agrees to
cancel this Agreement and record an appropriate instrument
reflecting such cancellation. Thereafter, none of the units of
Tract 7728 shall be encumbered by this Agreement.
4. OPINION OF COUNSEL. Concurrent with the execution
hereof, Developer shall provide to City a letter of opinion
from its legal counsel stating that in the opinion of counsel
this Agreement constitutes a valid and binding contract upon
J 541PaGEll 3�'-_l
Developer and that the inclusion of the terms hereof in this
Agreement rather than in the Declaration of Covenants, Condi-
tions and Restrictions for the project does not impair
Developer's legal ability to comply with said terms nor the
enforceability of this Agreement by City.
5. RECORDATION. Developer shall execute this Agree-
ment, cause the same to be acknowledged and deliver said
executed and acknowledged document to the City in such form as
to permit its recordation in the office of the County Recorder
of the County of Santa Clara, State of California. This Agree-
ment shall be recorded at the same time as the final subdi-
vision map for the project is recorded. City shall not be
obligated to permit recordation of the final subdivision map
prior to such delivery of this Agreement.
6. LIMITED CONSTRUCTION. Nothing contained herein
shall be deemed compliance with or waiver of any provision of
law or condition of subdivision approval except as expressly
stated herein with respect to conditions relating to BMR units.
7. AGREEMENT BINDING. The terms, covenants and condi-
tions of this Agreement shall apply to, and shall bind, the
heirs, successors, executors, administrators, assigns, con-
tractors, subcontractors and grantees of both parties and shall
be covenants running with the land.
8. WAIVERS. The waiver by any party of any breach or
violation of any term, covenant or condition of this Agreement
or of any provision, ordinance or law shall not be deemed to be
n
I
J54IPAGE:-13!1
a waiver of such term, covenant, condition, ordinance or law or
of any subsequent breach or violation of the same or of any
other term, covenant, condition, ordinance or law.
9. COSTS AND ATTORNEY'S FEES. The prevailing party in
any action brought to enforce the terms of this Agreement or
arising out of this Agreement may recover its reasonable costs
and attorney's fees expended in connection with such an action
from the other party.
IN WITNESS WHEREOF, City and Developer have executed
this Agreement the day and year first above written.
ATTEST.—
Cit
TTEST:—Cit Clerk
Approved:
zk,--t -
Director of Planning Department
Approvedasto f rm:
City Attorney
5
CITY OF CUPERTINO
By :PCity Manager
HW AND ASSOCIATES INVESTMENT
CO., a California Limited
Partnership
By: Hilda Wong, Inc.,
General Partner
By:
Hilda Wong, Pr/ sident
STATE OF CALIFORNIA
ss.
COUNTY OF SANTA CLARA
J541PAGE 135
On this C_ day of `�, 1985, before me, the
undersigned Notary Public, State of California, duly
commissioned and sworn, personally appeared HILDA WONG, person-
ally known to me (or proved to me on the basis of satisfactory
evidence) to be the President of the Corporation which is the
General Partner of the Partnership that executed the within
Instrument, known to me to be the person who executed the
within Instrument on behalf of the corporation therein named,
and acknowledged to me that such corporation executed the
within Instrument pursuant to its by laws or a resolution of
its board of directors.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my official seal, in the County of Santa Clara on the
date set forth above in this certificate.
Notary Public, State of
California
OFFICIAL SEAL
MICHELE A. SHERLOCK
NOTARY PUBLIC - CALIFORNIA
0, SANTA CLARA COUNTY
My Commission Expires Feb. 4, 1986
hilda
JEJ/ms
10-28-85
J 5 41 PAGE -1136
EX8IB IT A
TERMS AND CONDITIONS
Subject to:
An option to purchase the real property conveyed hereby
and any improvements thereon (hereafter "the Premises") under
conditions herein later set forth, vested in the City of
Cupertino (hereinafter "City"). City may designate a govern-
mental or non-profit organization to exercise its option to
purchase. City or its designee may assign this option to an
individual private buyer who meets the City's eligibility
qualifications. After the exercise of said option by City, its
assignee or designee may assign said right to purchase to any
substitute individual private buyer who meets the City's
eligibility requirements and is approved by the City: Pro-
vided, however, that such subsequent assignment shall not
extend any time limits contained herein.
In the case of the original transfer from the Developer
to the City, its assignee or designee, the City, its assignee
or designee shall have the right to exercise its option to
purchase said premises within thirty (30) days after the
occurrence of the later of the following events:
1. The subject premises are ready for occupancy; or
2. Within ninety (90) days from the date the
Developer notifies the City that building permits
have been issued to the Developer for the
J 541PACE 1137
development of the subject premises.
The escrow shall be closed within ten (10) days of the
exercising of the option.
If the subject premises are not expected to be completed
within ninety (90) days from the date the Developer notifies
the City that said building permits have been issued, the
Developer shall notify the City of the projected completion
date at least ninety (90) days prior to the Certificate of
Occupancy of the subject premises.
All such notices shall be personally delivered or
deposited in the United States mail, postage prepaid, first
class, certified, addressed to the City Manager, City of
Cupertino, 10300 Torre Avenue, Cupertino, California 95014.
In the case of the transfer from the original grantee to
a qualified purchaser, whenever the owner (including Grantee
and all successors in interest) of said Premises shall no
longer desire to own said Premises, owner shall notify City in
writing to that effect. Such notice shall be personally
delivered or deposited in the United States mail, postage pre-
paid, first class, certified, addressed to City Manager, City
of Cupertino, 10300 Torre Avenue, Cupertino, California 95014.
City, its assignee or designee, shall then have the right to
exercise its option to purchase said Premises by delivery of
written notice, by personal delivery or certified mail, to the
owner thereof at any time within sixty (60) days from the
receipt by City of such written notice from owner of intent to
J541PAGE1138
sell or written noice of any other method or mode of termina-
tion of ownership. As used hereinafter, "Grantee" shall refer
to the original grantee and all successors in interest.
If and in the event that City or its designee exercises
its option to purchase said Premises, close of escrow of said
purchase shall be within sixty (60) days of the opening of such
escrow by either party, except in the case of the original
transfer from the Developer to the City, its assignee or desig-
nee (see above). Such escrow shall be opened upon delivery to
owner of written notice of the exercise of the option or as
soon thereafter as possible. In the case of the original
transfer from the Developer to the City, its assignee or desig-
nee, closing costs shall be paid in the same manner for Below
Market Rate units as for the market rate units in the develop-
ment. In the case of subsequent transfers, closing costs and
title insurance shall be paid pursuant to the custom and
practice in the City of Cupertino, Santa Clara County, at the
time of the opening of such escrow. Any prepayment fees
charged by seller's lender will be paid by the buyer and that
amount will be added to the buyer's base purchase price to
allow it to be recovered upon resale by the buyer.
The seller will be required to obtain and pay for a
structural pest control report and to pay for any necessary
corrective work. The seller will not be obligated to perform
preventative, but not currently necessary, work; the buyer may
perform such work at his or her expense.
J541PACE 1139
The purchase price shall be paid in cash at the close of
escrow or as may be otherwise provided by mutual agreement of
buyer and seller.
The purchase price of the Premises shall be fixed at the
lowest amount arrived at via the following methods:
1. In the case of the original transfer from
Developer to the City or its assigned interest,
the purchase price of the units shall be estab-
lished ninety (90) days prior to the projected
date of occupancy according to the formula set in
the City policy based on the median income levels
for Santa Clara County as published by the San
Francisco Office of the U. S. Department of Hous-
ing and Urban Development which will be in effect
on the projected Certificate of Occupancy.
2. In the case of all transfers other than the
original transfer from the Developer to the City,
its assignee or designee, the purchase price
shall be fixed at and is based upon:
a) The purchase price paid by the selling owner plus
an amount, if any, to compensate for any increase
in the cost of living as measured by the Consumer
Price Index for the San Francisco -Oakland area
published by the U. S. Department of Labor,
Bureau of Labor Statistics (herein "the Index").
For that purpose, the Index prevailing on the
J 541PAGE 1 140
date of purchase by Grantor of said premises
shall be compared with that estimated to be
prevailing sixty (60) days subsequent to receipt
by City of notice of intent to sell.
The yearly compounded increase in the Index, if
any, shall be computed and the base price shall
be increased in the same percentage; provided,
however, that the price as determined under sub-
paragraph 2(a) shall in no event be lower than
the purchase price paid the selling owner.
b) The adjusted purchase price, as determined by
subparagraph 2(a), shall be increased by the
amount of any prepayment fees charged by the
previous owner's lender and paid by the current
seller at the time the current seller purchased
said Premises.
c) The adjusted purchase price, as determined under
subparagraph 2(a) and 2(b) shall be increased by
the value of any substantial or structural or
permanent fixed improvements which cannot be re-
moved without substantial damage to the premises
or substantial or total loss of value of said
improvements as hereinafter provided. No such
adjustment shall be made except for improvements
made or installed by the selling owner. No
improvement shall be deemed substantial unless
J541PAGE 1141
the actual initial costs of the improvement to
the owner exceeds one (1%) percent of the pur-
chase price paid by the selling owner for the
premises. Notwithstanding the foregoing,
improvements to the common areas of a condominium
or Planned Unit Development made by a mandatory
assessment by the homeowner's association will be
considered the same as an improvement made
directly by the owner. The one (1%) percent
minimum expenditure requirement will not apply to
such assessments. In addition, replacement of
appliances, fixtures and equipment which were
originally sold as part of the unit will be
deemed substantial improvements if the replace-
ment is required by the nonoperative or deterio-
rated nature of the original appliance, fixture,
or equipment. The replacement must be of compar-
ative value. The one (1%) percent minimum
expenditure requirement will not apply to such
replacements. No adjustment shall be made for
the value of any improvements unless the owner
shall present to the City valid written docu-
mentation of the cost of said improvements. The
value of such improvements and the amount by
which the sales price shall be adjusted shall be
the appraised market value of the improvments
J 5 4 1 PAGE 114 2"0
when considered as additions to fixtures to the
premises (i.e., the amount by which said improve-
ments enhance the market value of the premises)
at the time of sale. City or its designee shall
have an appraisal made by an appraiser of its
choice to establish the market value. The owner
may also have an appraisal made by an appraiser
of owner's choice to establish the market value.
If agreement cannot be reached, the average of
the two appraisals shall be termed the market
price.
In all sales, the sales price, fixed as designated
above, shall be recorded clearly as a part of the deed
transferring ownership.
Upon resale, an inspection of the Premises will be made
by the Chief Building Inspector of the City of Cupertino.
Damage done to the premises as a result of the selling owner's
failure to adequately maintain the premises will be identified
by said Inspector and the cost to repair them will be estimat-
ed. The seller has the option, exercisable prior to the close
of escrow of either repairing the identified damaged conditions
and receiving the full sale price as established above or hav-
ing the cost to repair the identified damaged conditions
deducted from the proceeds of the sale. Those funds would
remain in escrow and guarantee that the repairs be made.
In no event shall City become in any way liable to
J541PAGE1143
Grantee, nor become obligated in any manner, by reason of the
assignment of its option to purchase, nor shall City be in any
way obligated or liable to Grantee for any failure of City's
assignee to consummate a purchase of the Premises or to comply
with the terms of any sales agreement.
Until such time as the City's option to purchase is
exercised, waived or expires, said Premises and any interest in
title thereto shall not be sold, leased, rented, assigned or
otherwise transferred to any person or entity except with the
express written consent of the City or its designee, which
consent shall be consistent with the City's goal of creating,
preserving, maintaining, and protecting housing in Cupertino
for persons of low and moderate income.
In the event that City abandons or fails to exercise its
option to purchase said Premises within sixty (60) days after
it receives the notice of intent to sell, City will cause to be
recorded in Santa Clara County a notice of intent not to exer-
cise its option with respect to said Premises, and declaring
that the provisions of this option are no longer applicable to
said Premises, and shall deliver a copy thereof to owner of
said Premises. Said notice shall be recorded within fifteen
(15) days of City's decision not to exercise its option, but no
later than sixty (60) days after City receives the notice of
intent to sell. Upon recordation of said notice, the pro-
visions of this option shall no longer be applicable to said
Premises.
J541PAGE 11 4
The following transfers of title or any interest therein
are not subject to the option provisions of this deed; trans-
fers by gift, devise or inheritance to grantee's spouse or
issue; transfers of title to spouse as part of divorce or dis-
solution proceedings; acquisition of title or interest therein
in conjunction with marriage; provided, however, that these
covenants shall continue to run with the title to said Premises
following said transfers.
The provisions set forth in this deed relating to City's
option to purchase shall terminate and become void automatic-
ally fifty (50) years following the date of recordation of this
deed unless extended in writing for one additional fifty (50)
year period at the option of the City and the same shall con-
stitute covenants which shall run with the land and be binding
upon grantee(s) and successors and assignee, and all parties
having or acquiring any right, title or interest in or to any
part of the property. Any attempt to transfer title or any
interest therein in violation of these covenants shall be void.
Grantee covenants to cause to be filed for record in the
Office of the Recorder of the County of Santa Clara a request
for a copy of any notice of default and of any notice of sale
under any deed of trust or mortgage with power of sale encum-
bering said Unit pursuant to Section 2924(b) of the Civil Code
of the State of California. Such request shall specify that
any such notice shall be mailed to the City Manager, City of
Cupertino, 10300 Torre Avenue, Cupertino, California 95014. In
J541PAGE114
the event grantee fails to give such notice to City, all sur-
plus to which grantee may be entitled pursuant to Section 727
of the Code of Civil Procedure of the State of California shall
be paid to City. If grantee gives proper notice, any surplus
to which grantee may be entitled pursuant to Code of Civil Pro-
cedure Section 727 shall be paid as follows: That portion of
surplus (after payment of encumbrances), if any, up to, but not
to exceed, the net amount that grantee would have received
after payment of encumbrances under the formula set forth above
had City exercised its option to purchase the property on the
date of the foreclosure sale, shall be paid to grantee on the
date of the foreclosure sale: The balance of surplus, if any,
shall be paid to the City.
In the event that the Unit is destroyed and insurance
proceeds are distributed to grantee instead of being used to
rebuild, or in the event of condemnation, if proceeds thereof
are distributed to grantee, or in the event of termination of
the condominium, liquidation of the association and distribu-
tion of the assets of the association to the members thereof,
including grantee, any surplus of proceeds so distributed
remaining after payment of encumbrances on said Unit shall be
distributed as follows: That portion of the surplus up to but
not to exceed the net amount that grantee would have received
under the formula set forth above had City exercised its option
to purchase the property on the date of the destruction, con-
demnation evaluation date, or liquidation, shall be distributed
*J 541 PAGE mir,
to grantee, and the balance of such surplus, if any, shall be
distributed to the City.
All notices required herein shall be sent to the
following addresses:
City Declarant Purchaser
City Manager
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
BY ACCEPTANCE of this deed, grantee accepts and agrees
to be bound by the covenants contained herein.
hilda2
JEJ/ms
1-14-85