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04-122 Improvement Agreement, Stevens Creek Office Center Associates AGREEMENT 20807 Stevens Creek Boulevard APN 326-32-051 This AGREEMENT made and entered into this ~ day of, 2004, by and between the CITY OF CUPERTINO, a municipal corporation of the State of California, hereinafter designated as CITY, and Stevens Creek Office Center Associates, a limited partnership, thereinafter designated as DEVELOPER. WITNE~SSETH WHEREAS, THE DEVELOPER has made application to the CITY to SECURE A BUILDING PERMIT to construct a commercial building hereinafter referred to as "Project". WHEREAS, CITY hereby approves the improvement plans and specifications prepared for the Project by Mission Engineering, a true copy ~~f which improvement plans and specifications are on file in the office of the City Engineer of Cupertino; and full; WHEREAS, the same are incorporated here-in by reference, the same as though set out in 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.: _52,384 Page 1 of 10 WHEREAS, pursuant to the provisions of this AGREEMENT, the CITY hereby established the amounts of Bonds, Fees, and Deposits as set fortr~ in the following schedul e: SCHEDULE OF BONDS. FEES AND DEPOSITS Street Improvement Category: PART A. Faithful Performance Bond: $ 42,124.50 110-2211 PART B. Labor and Material Bond: $ 42,124.50 110-2211 PART C. Checking and Inspection Fee: $ 2,527.47 110-4538 PART D. Development Maintenance Deposit: $ 1,000.00 110-2211 PART E. Storm Drainage Fee: Basin 1 Account #: 215-4071 $ 894.37 PART F. One-Year Power Cost: N/A 110-4537 PART G. Street Trees -By Developer N/A PART H. Map Checking Fee: N/A PART I. Park Fee: ZONE II N/A ACCT #: 280-4082 PART J. Water Main Reimbursement Fee: N/A 110-4554 PART K. Maps and/or Improvement Plans N/A As Specified in Item #21 Page 2 of 10 File No.: 52,384 NOW, THEREFORE, IT IS HEREBY MUTUALLY AGREED by and between the parties hereto as follows, TO WIT: 1. DEDICATION A. The DEVELOPER offers to dedicate the real property shown on Exhibit "A", which is attached hereto and made a part hereof by reference. Said dedicated property shall be free and clear of all liens or encumbrances except those, which the CITY shall waive in writing. The DEVELOPER agrees not to revoke said offer of dedication, and to keep said offer open until the CITY accepts offer by resolution. B. Upon execution of this AGREEMEI~IT 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 dedicati~~n. (2) A standard policy of title insurance issued by a title insurance company and insuring the CITY in the sum of: N/A, and which shall show said property free and clear of all liens or encumbrances except those as the CITY shall expressly waive in writing; said policy shall be furnished at the time of acceptance of dedication and. recordation of deed. C. Upon the condition precedent that the DEVELOPER shall perform each and every covenant and condition of this AGREEMENT, the CITY 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 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 f~eriod 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. No final inspection shall be granted or street improvements shall not be accepted unless all the requirements for safety purposes are installed such as sidf;walks, handicap ramps, streetlights, etc. 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 Pile No.: 52,384 Page 3 of 10 Work shall be done in accordance with existing ordinances and resolutions of the CITY and in accordance with all plans, specifications, standards, sizes, lines, and grades approved by the City Engineer. The Work ;hall be done in accordance with all State and County Statutes applicable hereto. The decision of the -City Engineer shall be final as to whether any material or workmanship meets the standards, specifications, plans, sizes lines and grades as set forth. C. It is further agreed that the Work sh:~11 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 ~~s 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. EXCAVATION PERMIT It is further agreed that the DEVELOPER shall comply with Section Three of Ordinance No. 130 of the CITY by obtaining an excav,~tion 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. 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 proje~;t and DEVELOPER agrees to execute a "Quitclaim Deed and Authorization" in favor of CITY, when presented to them for signature. 5. BONDS AND OTHER SECURITY A. Upon the execution of this AGREEIvIENT, the DEVELOPER shall file with the CITY a faithful performance bond to assure his full and faithful performance of this AGREEMENT. The penal sum of said faithful performance bond shall be the full cost of any payment to be made under this AGREEMENT, the value of any land agreed to be Pile No.: 52,38 Page 4 of 10 dedicated, and any improvements are to be .made under this AGREEMENT. In the event that improvements are to be made under this AGREEMENT, the DEVELOPER shall, in addition to said faithful performance, file with the CITY a labor and materials bond in a penal sum adequate to assure full payment of all labor and materials required to construct said improvements. The amount of said bonds shall be as designated by the City Engineer. Said bonds shall be executed by a surety company authorized to transact a surety business in the State of California and must be approved by the City Attorney as to form and by the City Engineer as to sufficiency. In the event that the DEVELOPER shall fail faithfully to perform the covenants and conditions of this AGREEMENT, or to make any payment, or any dedication of land, or any improvements herein required, the CITY shall call on the surety to perform this AGREEMENT or otl-erwise indemnify the CITY for the DEVELOPER'S failure to so do. B. In lieu of a faithful performance sur~;ty 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 65499 (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 ;hall be the equivalent to that which would have been required had the DEVELOPER furnished the CITY with a faithful performance surety bond. In the event that the DEVELOPER s~zall fail faithfully to perform the covenants and conditions of this AGREEMENT, or to mal~:e any payment, or any dedication of land, or any improvements herein required, the CIT'i' may apply the proceeds of said security thereto. D. No release of surety bond, cash depc-sit, check, or certificate of deposit, shall be made except upon approval of the City Council. Schedule for bond and insur~ince release for all sureties are as follows: A. Release of 90 percent of the faithful performance bond upon acceptance by City Council 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 claim against such bond. C. Release of the entire labor and material bond at six months from acceptance after all deficiencies have been corrected and in the absence of any claim against suc h bond. File No.: 52,384 Page 5 of 10 D. Liability insurance, provided by the developer to hold the City harmless in the event of liability ~~rising 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. 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 CITS' 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 c~~lculated, the City Engineer shall notify DEVELOPER of any additional sum due acid owing as a result thereof. 7. MAP CHECKING FEE -NOT APPLICABLE It is further agreed that the DEVELOPER shall deposit with CITY, prior to execution of this AGREEMENT, for office checking of i_inal 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). 8. DEVELOPMENT MAINTENANCE DEPOSIT It is further agreed that the developer shall I-ay to the City, prior to execution of this agreement, the amount set forth at page 2 (Fart D) as a development maintenance deposit to insure copies of approved plans are made for the files of the City in accordance with Item 21 of this agreement. The balance of the deposit shall be released in conjunction with the release of the remaining 10% of the original bond. 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 ch~~rge in connection with the 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;-. 10. WATER MAIN EXTENSION DEPOSIT -NOT APPLICABLE 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 CITY shall hold the deposit until said monies are needed to implement improvements outlined by the Director of Public Works or improvements outlined within the adopted Water Master Plan. File No.: 52,384 Page 6 of l0 The amount shown herein at Part J, Page 2, shall be the full amount due. 11. ONE YEAR POWER COST -NOT APPLICABLE It is further agreed that the DEVELOPER sl.iall pay to the CITY prior to execution of this AGREEMENT, the amount as set forth herein at Page 2 (Part F), which amount represents the power cost for street lights for one year. 12. THE INSTALLATION OF STREET TREF;S - BY DEVELOPER 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 selectec~~, from the City approved list. 13. PARK FEES -NOT APPLICABLE 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 Section 18-1.602 Park Land Dedication, Cupertino Municipal Code, and which is further stipulated under Part I, Page 2 herein. The City Council on March 19, 1991 and Chapter 14.05 or Section 18-1.602 of the Cupertino Municipal Code also in accordance with acl ion adopts fees. 14. 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. 15. SANITARY DISTRICT It is further agreed that the DEVELOPER sl.iall file with CITY, upon execution of this AGREEMENT, a letter from the Cupertino Sanitary 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. 16. 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. Pile No.: 52,384 Page 7 of 10 17. PACIFIC GAS AND ELECTRIC/PACIFIC BELL It is further agreed that the DEVELOPER sh;~ll pay to Pacific Gas and Electric Company and/or to PACIFIC BELL Company any and all fees required for installation of overhead and/or underground wiring circuits to all elec;troliers within said property and any and all fees required for undergrounding as provided in Ordinance No. 331 of CITY when are notified by either the City Engineer or the Pacific Gas and Electric Company and/or Pacific Bell Company that said fees are due and pay~ible. 18. EASEMENTS AND RIGHT-OF-WAY It is further agreed that the DEVELOPER at his own cost and expense shall acquire any easement and right-of--way necessary for completion of the Project. It is provided, however, that in the event eminent domain proceedings are required 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. 19. 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 performance or nonperformance of the Work or the negligence or willful misconduct of the DEVELOPER or the DEVELOPER' S agents, employees and independent contractors, except to the extent any of the foregoing is caused by the negligence or willful misconduct of the CITY or the CITY's agents, employees and independent contractors. 20. 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 offices°s, agents and employees of the CITY individually and collectively, as insured. S~iid 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 File No.: 52,384 Page 8 of 10 property damage insurance must be on an occurrence basis; and said policy or policies shall provide that the coverage afforded thereby :;hall be primary coverage to the full limit of liability stated in the declarations, and if they 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. The insurance carrier shall provide proof of their ratings. All ratings shall be a minimum of "Best A-7" in accordance with ABAG policies. A. Each of said policies of insurance shall provide coverage in the following minimum amounts: For bodily injury, $100, OC~0 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 insur;~nce 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. Tlie CITY shall be shown as additionally insured on a separate "Additional Insured O~,~mers, Lessees or Contractors" (Form A) or (Form B) Endorsement provided along with the evidence of said foregoing policy of policies of Insurance. 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. 21. MAPS AND/OR IMPROVEMENT PLANS It is further agreed that the CITY shall obtain the following map and/or plans at the DEVELOPER'S expense: A. A mylar blackline and five (_`i) prints of fully executed parcel map. B. A mylar blackline and twelve (12) prints of fully executed improvement plan. C. A scan in raster format of all executed improvement plans and map. The DEVELOPER agrees to pay the CITY :From the development maintenance deposit the cost for all prints of plans and map required under Item 21. File No.: 52,384 Page 9 of 10 22. SUCCESSORS This AGREEMENT shall bind the heirs, adiministrators, executors, successor, assignee and transferees of the DEVELOPER. The assignment of this AGREEMENT shall not be made without approval by the City Council of the City of Cupertino. 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 their names to be affixed the day and year first above written. CITY OF CUPERTINO: Approved as to form: ,'~ ; i City Attor y Mayor , City Cl DEVELOP R: Steven Creek Of a Center Associates Melanie Roberts, set Manager Notary Acknowledgment Required Exhibit A Attached Page ] 0 of 10 File No.: X2,384 CALIFORNIA ALL-PURPOSE ACKNOWLECIGMENT State of California County of Santa Clara On October 12, 2004 Date ss. before me, Norma K. Uenaka, Notary Publ Name and Title of OKicer (e.g., "Jane Doe, Notary Public") personally appeared Melanie Roberta Na~~me(~~) of Signer(s) Imo'personally known to me ^ proved to me on the basis of satisfactory evidence NORAAA K. UEPIIIKA Commission ~ 1426516 ~ •: Notary Public - CaNlomb SoMq Clara County My Comm. Expws,Nan 27.200 '~~ to be the person( whose name(ta~j is/aye subscribed to the within instrument and acknowledged to me that•f~e/she/tke~rexecuted the same in J~is/her/their- authorized capacity(•ies)-, and that by i~ts><her/ttaeif- signature~ on the instrument the person(,", or the entity upon behalf of which the person(,a~' acted, executed the instrument. WITNESS my hand and T / \ L Signature of Notary Public OPTIONAL ~1`,( `!`l ~!`,!~!`.t ~!`,t':~C~.t~!`,i-~!`~ ~t"~!`~ :!`~ ~!'. '~!'~ ~!`i~l~!`i:-1`l~I~i~!`~:/`i-:lei:~/~i:/~i:J~i:J~i`J~;:~T::J~::~ Though the information below is not required by law, it may provf~ valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: AGREEMENT Document Date:Oc tober 12 , 2 0 0 4 Number of Pages: 11 Signer(s) Other Than Named Above: Mayor & City Clerk, City of Cuter -ino Capacity(ies) Claimed by Signer Signer's Name: Melanie Rob ,. ^ Individual Top of thumb here ^ Corporate Officer -Title(s): ^ Partner - ^ Limited ^ General ^ Attorney-in-Fact ^ Trustee ^ Guardian or Conservator Other: A~~Pi- Mana~pr _ Signer Is Representing: Stevens Creek (Jff ice Center Assoc © 1999 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.nationalnotary.org Prod. No. 5907 Reorder: Call Toll-Free 1-800-876-6827