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81-009 Kenneth & Wanda Doty and Marius & Susan Nelson Commercial DevelopmentAG R'EEM ENT This AGREE= made and entered into this 18th day of February 19 81 , by and between the CITY OF CUPERTINO, a municipal corporation of the State of California, hereinafter designated as CITY, and Kenneth E. Doty, Wanda J. Doty, Marius E. Nelsen and Susan J. Nelsen hereinafter designated as Developer. W I T N E S S E T H ;MZU-AS, the Developer has made application to the CITY for a Building Permit and is securing a building.permit from CITY to cnnstruct and maintain a Commercial Development hereinafter referred to as "Project." VH1R kS, CITY hereby approves the improvement plans and specifications prepared for the Project by Nelson Engineers, Incorporated a true copv of said improvement plans and specifications are on file in the office of the City Engineer of Cupertino; and 147=7EUS, 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." WHERE.-kS, pursuant to the provisions of this AGREMUMT, the CITY hereby establishes the amounts of Bond, Fees, and Deposit as set forth in the follow-i=g schedule: -1- SC=7-r . OF 3C:ID. : �S , ATL 0 L.'0S S ?_�= A. ?er.ornanca 3ond: Thirty -Eight Thousand and no/100 Dollars ?3T B. Labor and Macar�al 3ond: Thirty -Eight Thousand and no/100 Dollars $ 38,000.00 $ 38,000.00 C. Check:Lzg and Iasp ect_ca Fee: $ 1,900.00 One Thousand Nine Hundred and no/100 Dollars PAZ: ]. L:dr'ect Cit? 3tenses : Two Hundred Eighty -Five and no/100 Dollars Deve? opmenc ua c—amce Deiposit : Two Hundred Fifty and no/100 Dollars $ 285.00 $ 250.00 (Masterline Reimbursement kzT F Sten Dr3.lnago Fee; due to Developer at S 3,983.00 approval of line by City. Three Thousand Nine Hundred Eighty Three and no/100 Dollars ?ate v. G`ne Year Power Cast: $ 72.00 Seventy Two and no/100 Dollars ? A.L 2. T. ae Fees : S BY DEVELOPER P?3= 1. waa C cracking Fee: I PAR: J. Para Fee: PAR:: K. 'dater !lain Extension Deposit $ Main to be Installed * MASTER WORK BY CITY AT CITY EXPENSE `IOw, IT IS== `� UTAL.:.? AG-- by a=d be7Neen the Pares cera=� a5 (a) The Developer a"ars to Cecicate the rea.: Prc_ er_F +snowM an F_c �•�'�, aich is av:ach.ed he=acc and nade a par= :zero: by reference. Sa_d dedicated property shall be free and clear of all liens or encumbrances except those which the CITY shall expressly waive in writing. The Developer agrees not "to revoke said offer of dedication, and to keep said offer open until the CITY accepts said offer by resolution. (b) Upon execution of this AGREEMENT 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; said Preliminary Title Report shall be furnished prior to Dedication ; (2) A standard policy of title insurance issued by a title insurance company and insuring the CITY in the sum of $ - - - 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 AGREEMENT, the-?��ITY agrees to accept said real property offered for dedication. 2. 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 AGR=IENT, 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. -3- (b) The Developer shall install and complete the Work in a good and workmanlike manner in accordance with the plans as approved by the City Engineer of Cupertino. The Work shall be done in accordance with existing ordinances and resolutions of the City of Cupertino, and in accordance with all plans, specifi- cations, 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 Standard Specifications of the Department of Public Works, Division of Hioh- ways, State of California, dated January, 1973 and in accordance with the speci- fications of the Cupertino Sanitary District where applicable. Wherever the words "State" or "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 of Cupertino and/or the Cupertino Sanitary District, the specifications of the City of Cupertino and/or the Cupertino Sanitary District shall take prece- dence over and be used in lieu of such conflicting portions. 3. EXCAVATION PERMIT It is further agreed that the Developer shall comply with Section Three of Ordinance No. 130 of the City of Cupertino 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. -4- 4. QUITCLALM DEED It is further agreed that Developer, when requested by the CITY, sb.all - quitclaim all his rights and interests in, and shall grant to CITY authorization to extract water from 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. 5. BONDS AND OTHER SECURITY (a) Upon the execution of this AGREEMENT, the Developer shall file with the CITY a faithful performance bond to assure his full and faithful performance of this AGRELMNT. The penal sum of said faithful performance bond shall be the full cost of any payment to be made under this AGZEE4ENT, the value of any land agreed to be dedicated, and any improvements to be made under this AGREMIENT. In the event that improvements are to be made under this AGREE4ENT, 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. Thq>.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 AGREE4ZINT, or to make any payment, or any dedica- tion of land, or any improvements herein required, the CITY shall call on the surety to perform this AGREE -TENT or otherwise ir_demnifv the CITY for the Developer's failure to do so. (b) In lieu of a surety bond, the Developer may elect to secure this AGREEMENT by depositing with the CITY: -5- (1) Cash; or, (2) A cashier's check, or a certified check, payable to the order of the CITY; or, (3) A certificate of deposit, or instrument of credit meeting the requirements of Government Code Sectian. 66499 (b) or (c). (c) The amount of said cash, checks, certificate of deposit, or instru- ment of credit shall be as designated by the City Engineer, and shall be the equiv- alent 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 therein required, the CITY may apply the proceeds of said security thereto. (d) No release of surety bond, c?sh 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. 6. 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 con- struction cost vary materially from the estimate from which said sum is calculated, the City Engineer shall notify Developer of any additional sum due and owing as a result thereof. 7. INDIRECT EXPENSES It is further agreed that Developer shall pay to CITY, prior to execution of this AGREEMENT, indirect expense allocable to processing these improvements, the amount as set forth herein at Page 2 (Part D). 7A. 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 12/4/61) 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.A. STORM DRAINAGE FEE It is furthar agreed that tine Developer shall deposit with the CITY, prior to execution of this AGREEMFiT, a storm drainage charge in connection with said project in accordance with the requirements established in Resolution 4422, March 21, 1977 1. in the amount as set forth herein at Page 2, (Part F) . 9.B. WATER MAIN EXTENSION DEPOSIT The Developer further agrees to deposit with the City those monies required to comply with "Policy on Water Main Extensions Work and Deposits" dated 9/30/77. The deposit shall be held by the City until said monies are needed to implement improvements outlined by the Director of Public Works or improvements outlined within an adopted slater Master Plan. The amount shown herein at Park K, Page.2, shall be the full amount due. 7 - 10. ONE YEAR POWER COST It is further agreed that the.Developer shall pay to CITY prior to execution of this AGREEMENT, the amount as set forth herein at Page 2 (Part G), which amount represents the power cost for street lights for one year. 11, FEES FOR THE INSTALLATION OF STREET TREES It is further agreed that the CITY shall, at such time as deemed appropriate by the City Engineer, plant and maintain street trees in con- formance with the standards of the City of Cupertino. As payment for said installation and maintenance by the CITY, the Developer shall pay to the CITY, prior to the execution of this AGREEMENT, the amount as set forth herein at Page 2 (Part H), which amount represents the fees for installation and maintenance of said street trees, having been calculated at the unit price of $15.00 per tree. 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 THE 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 CI'T'Y 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. - 8 - 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 constructions of the said sanitary sewers and to insure maintenance of said sanitary sewer in conformance with the provisions as set forth in Paragraph 13 above has been filed. 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 Itis further agreed that the Developer shall file with the CITY, upon execution of this AGREEMENT, a letter from the Central Fire Protectian 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. 17. STREET LIGHTING It is further agreed that the Developer shall apply for the installation of electric power for street lighting at the earliest date possible. 18. P.G.& E. AND P.T.& T. It is further agreed that the Developer shall pay to Pacific Gas and Electric Company and/or to Pacific Telephone and Telegraph Company any and all fees required for installation of overhead and/or underground wiring circuits to all electroliers within said property and any and all fees required for under - grounding 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 s id 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, end other incidental costs in such reasonable amounts as the CITY may require shall be deposited with CITY. 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, 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 perfor- - 10 - .. .. _ .-... ., ___--.,,_::.: a. _ a.;:•. -..: .-:,. ;mac ra'«.asrcw�s+n+N��x+n-o ,+�wrawarc:a;.v:�ro+�ny�t�+,er:x. mance or nonperformance of the Work or the negligence or willful misconduct of the Developer or the Developer's agents, employees and independent contractors. 21. INSURANCE It is further agreed that: The Developer shall take out, or shall require any contractor engaged to perform the Work to take out, and maintain at all times during the performance and maintenance of the Work called for or required to be done hereunder, a policy of insurance naming the CITY and members of the City Council of the City of Cupertino, individually and collectively, and the officers, agents, and employees of the CITY individually and collectively, as insured. Said separate policy shall provide bodily injury and property damage coverage to the foregoing named CITY and individuals covering all the Work performed by, for, or on behalf of said Developer. Both bodily injury and property damage insurance must be on an occurrence basis; and said policy or policies shall provide that the coverage afforded thereby shall be primary coverage to the full limit of liability stated in the declarations, and if the CITY, its members of the City Council, individually and collectively, and the officers, agentk,_yand employees of the CIT`i, 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 amountsc 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 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 of Cupertino shall equally apply to municipality and political subdivision. 22. SUCCESSORS This AGREE4ENT shall bind the heirs, administrators, executors, successors, assigns and transferees of Developer. The assignment of this AGREEMENT shall not be made without approval by the City Council of CITY. IN 1ITNESS WMEREOF, said CITY has caused its name to be hereunto affixed by its City Engineer and City 'Manager, 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. Approved as to form: City /Attorney CITY OF�CUPERTIidO By C ilty'--Eng i Ae er B ' City ^tanager DEVELOPER Acknowledgements and Exhibit(s) _A attached. - 12 - STATE OF CALIFORNIA ) ss. COUNTY OF SANTA CLARA) '2 z On `'���'' o 19V, before me, the undersigned, a Notary leu lic in and r said State, personally appeared known to me to be the persons whose names are subscribed to dhe within Instrument, and acknowledged to me that they executed the me. WITNESS my hand and - 'cial seal. YOLANDA V. Di MARCO NOTARY PUBLIC. *.ALiFQRNtA SAN tMTEO COUNTY My commission explm R-6 I It 1"2 ary Public in and for the County f Santa Clara, State of California ---------------------------------------------------------------------------- CORPORATION ACKNOiTLEDGE`IENT STATE OF CALIFORNIA ) ) ss. COUNTY OF SANTA CLARA) INDIVIDUAL ACKNOWLEDGMENT State of California ---------Fresno------------------County of --•---.Fresno S.S. On this -------- 4th ------------ day of --- Fehruazv--------------- 19-81-, before me, ---------------Carol- Depise- Durham--____ --------------------------------- -, a Notary Public in and for said __ Fresno County, (SEAL) personally appeared-._ Kenneth--E-.--Dot - - -�'-- &--Wanda•-Doty------•---•---------- -- -----------------------------•--•---------•-----------•------------._...--------------------------- known to me to be the person- s_ --whose name -s -----------------------------------subscribed to the within J nstrument, and acknowledged that .... they ---- executed the same. OFFICIAL WITNESS my hand and official seal. SEAL CAROL DENISE DURHAAA NOTARY PUBLIC - CALIFORNIA L- FRESNO COUNTY "'-•--„ r LIF My comm. expires SEP 18,1984 _ ', ii Notary Public in and for said ------- Fresno- ----------------------------------------- County and State P 169 1-7s My commission expires .......... 9-1$ ........... 19.84..