04-036 Tract No 9535 Agreement, Town Center Phase I~~_
TRACT AGREEMENT
TRACT PJo. 9535
Town Center Phase I
10251 & 10271 Torre Avenue
This AGREEMENT, made and entered i~~to this day of l , 2004 , by
and between the CITY OF CUPERTINO, a municipal corporation of the State of California,
hereinafter designated as CITY, and Civic Park ~G, LLC, hereinafter designated as
DEVELOPER.
WITNESSETH
WHEREAS, said DEVELOPER desire 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 No. 9535 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 Kier & Wright, Inc., a true copy of said improvement plans and specifications
are on file in the Office of the City Engineer of (:upertino; 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."
File No.: 52,339
Page 1 of 10
WHEREAS, pursuant to the provisions o.F 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 DEPOSI'T'S
STREET IMPROVEMENT CATEGORY:
PART A. Faithful Performance Bond: $168,931.00
PART B. Labor and material Bond: $168,931.00
PART C. Checking and Inspection Fee: $10,136.00
110-4538
PART D. Development Maintenance Deposit: $3,000
110-2211
PART E. Storm Drainage Fee: Basin #3 $1,438.80 pa
215-407 Receipt No. 24337 1/28/04
PART F. One Year Power Cost: $225.00
110-4537
PART G. Street Trees: By Developer
PART H. Map Checking Fee: $564.00 nd
110-4539 Receipt No. 24482 2/l 0/04
PART I. Park Fee: Zone III N/A
280-4083
PART J. Water Main Reimbursement: N/A
PART K. Maps and/or Improvement Plans:
AS SPECIFIED IN ITEM #21
File No.: 52,339
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NOW, THEREFORE, IT IS HEREBY MUTUALLY AGREED by and between the
parties hereto as follows, TO WIT:
L 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 cost; 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 thc; 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 lie used in lieu of such conflicting portions.
2. EXCAVATION PERMIT
It is further agreed that the DEVELOPEF: 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 furthf;r agreed that the DEVELOPER shall notify the
City Engineer of the exact date and time when the proposed excavation is to commence.
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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 lying 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 the 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 ~igreed 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 ~idequate 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 C
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 s;~id 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.
1. Schedule for bond and ins~zrance release for paper bonds are as follows:
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Page 4 of 10
A. Release of 90 percent of the faithful performance bond upon
acceptance by City Cou~icil
B. Release of the remaining 10 percent of the performance bond at
one year from acceptance after all deficiencies have been corrected and
in the absence of any cl~iim against such bond.
C. Release of the entire labor and material bond at six months from
acceptance after all defi~~iencies have been corrected and in the absence
of any claim against such bond.
D. Liability insurance, provided by the developer to hold the City
harmless in the event of liability arising from the project, to be retired
at the end of one year if all deficiencies have been corrected and in the
absence of any claim against such insurance.
2. Schedule for Bond and Insurance Release for Cash, CD, Set-Aside Letter
are as Follows:
A. Release of 45% of -bond upon acceptance by City Council.
B. Release of additional 45% at six months from acceptance after all
deficiencies have been ~;orrected and in the absence of any claim
against such bond.
C. Release of remaini~lg 10% at one year from date of acceptance after
all deficiencies have been corrected and in the absence of any claim
against such bond.
D. Release of the liability insurance, provided by the developer or
contractor to hold the City harmless in the event of liability arising from
the subject project, at the end of one year if all deficiencies have been
corrected and in the ab:;ence of any claims against such insurance.
E. No interest shall be paid on any security deposited with the CITY.
5. CHECKING AND INSPECTION FEE
It is further agreed that DEVELOPER sh;~ll 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, ~~rior to execution of this AGREEMENT, the
amount as set forth herein at Page 2 (Part C). Sr,ould construction cost vary materially from the
estimate from which said sum is calculated, the I~ity Engineer shall notify DEVELOPER of any
additional sum due and owing as a result thereof.
File No.: 52,339
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6. MAP CHECKING 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 H).
7. 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 Pa;~e 2 (Part D) 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 CI'CY. Should the DEVELOPER complete the
required repairs to the entire satisfaction of the C'[TY, the unused balance will be returned after
the release of the improvement bonds.
8. STORM DRAINAGE FEE
It is further agreed that the DEVELOPER shall deposit with the CITY, prior to execution
of the AGREEMENT, a storm drainage charge ir.~ 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 E).
9. ONE YEAR POWER COST
It is further agreed that the DEVELOPER. shall pay to CITY prior to execution of the
AGREEMENT, the amount as set forth herein at Page 2 (Part F), which amount represents the
power cost for street lights for one year.
10. 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.
11. PARK FEES
It is further agreed that the DEVELOPER small pay such fees and/or dedicate such land to
the CITY, prior to execution, as is required with:~n "Park Dedication Ordinance" Number 602,
1972, and which is further stipulated under Part [, Page 2 herein. Fees are also in accordance
File No.: 52,339
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with action adopted by the City Council on March 19, 1991, and Section 18-1.602 of the
Cupertino Municipal Code.
12. 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.
13. SANITARY DISTRICT
It is further agreed that the DEVELOPER shall file with CITY, upon execution of this
AGREEMENT, a letter from the Cupertino Sanittiry District stating that the DEVELOPER has
submitted plans for review by the District and that sanitary sewers are available to serve all lots
within said Project.
14. 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.
15. 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.
16. PACIFIC GAS AND ELECTRIC/Pt~,CIFIC BELL
It is further agreed that the DEVELOPER_ shall pay to Pacific Gas and Electric Company
and/or to PACIFIC BELL 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 Ne. 331 of CITY when DEVELOPER are notified
by either the City Engineer or the Pacific Gas an~i Electric Company and/or PACIFIC BELL that
said fees are due and payable.
17. EASEMENTS AND RIGHT RIGH7~-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 their own cost and expense. It is provided,
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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.
18. HOLD HARMLESS
It is further agreed that, commencing with the performance of the Work by the
DEVELOPER or their 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 ;rising 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.
19. 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 Coun~;il of the City of Cupertino, individually and
collectively, and the officers, agents and employees of the City individually and collectively, as
additional insured. Said separate policy shall provide bodily injury and property damage
coverage to the foregoing named CITY and individuals covering all the Work performed by, for,
or on behalf of said DEVELOPER. Both bodily injury and property damage insurance must be
on an occurrence basis; and said policy or policies shall provide that the coverage afforded
thereby shall be primary coverage to the full limit of liability stated in the declarations, and if the
City, its members of the City Council individually and collectively, and the officers, agents, and
employees of the CITY, individually and collectively, have other insurance against the loss
covered by said policy or policies, that other insurance shall not be called upon to cover a loss
under said additional policy.
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 s~iid 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.
File No.: 52,339
Page 8 of 10
C. In the event that the project covere~~ 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 equally apply to municipality and political
subdivision.
20. 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 PARS[' K, Page 2 shall be the full amount due.
21. MAP AND/OR IMPROVEMENT PLANS
It is further agreed that the CITY shall obtain the following map and/or plans at the
DEVELOPER' expense:
A. A 4 mil mylar and eight (8) prints of fully executed tract map.
B. A 4 mil mylar and twelve (12) prints of fully executed improvement plans.
C. A scan in CAD format of all executed improvement plans and map.
The DEVELOPER agrees to pay the CIT~~ from the development maintenance deposit
the cost for all prints of plans and map required under Item 21.
23. 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.
File No.: 52,339
Page 9 of 10
STATE. OF CALIFORNIA
ss.
COUNTY. OF
On ~ ,before me, ~, personally
appeared ~ (,n,t'~,I/ ,
personally known to me -OR- ^
~~ ROBIN PITMAN
''nn Comm, a 1385184
Y! ` NOTARY PUBLIC • CALIFORNIA
Santa Clara County ..
~Y Camm, Expirai Nov. 1B,100A
proved to me on the basis of satisfactory
evidence to be the. person(s) whose
name(s) is/are subscribed to the. within
instrument and acknowledged to me that
he/she/they executed the same. in
his/her/their authorized capacity(ies),
and that by his/her/th~;ir signature(s) on
the instrument the. person(s), or the
entity upon behalf of which the
person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
SIGNATURE OF NOTARY
1KKS1601250.6
110703-13328001
10
CAPACITY CLAIMED BY SIGNER
Though statute does not require the Notary
to fill in the data below, doing so may
prove invaluable to persons relying on the
document.
^ INDIVIDUAL
^ CORPORATE OFFICERS(S)
Title(s)
^ PARTNER(S) ^ LIMITED
^ GENERAL
^ ATTORNEY-IN-FACT
^ TRUSTEE(S)
^ GUARDIAN/CONSERVATOR
^ OTHER:
SIGNER IS REPRESENTING:
Name of Person(s) or Entity(ies)
~ UcL ~'~., 1~