08-101 Improvement Agree Marci Properties 10056 OrangeAGREEII~IENT
10056 Orange Avenue
APN: 3 57-17-OS 8
This AGREEMENT made and entered into this ~ day of ~~~ ~~" 2008, by
and between the CITY OF CUPERTINO, a mwucipal corporation of the State of California,
hereinafter designated as CITY, and Marci ProaertiESS. LLC hereinafter designated as DEVELOPER.
WITNESSETH
WHEREAS, the DEVELOPER has m~ide application to the CITY to secure a Building
Permit to construct One single family dwelling and Two Commercial building with single family
dwelling in Multi use hereinafter referred to as "Project".
WHEREAS, CITY hereby approves the improvement plans and specifications prepared for the
Project by Nelsen Engineering, 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".
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
Street Improvement Category:
PART A. Faithful Performance Bond: $53,326.00
110-2211
PART B. Labor and Material Bond: $53,326.00
110-2211
PART C. Checking and Inspection Fee: $3,847.00
110-4538
PART D. Development Maintenance Deposit: $2,000.00
110-2211
PART E. Storm Drainage Fee -Basin 2 $556.61
215-4072
PART F. Street Light -One-Year Power Cost: $150.00
110-4537
PART G. Map Checking Fee: $.00
110-4539
PART H. Park Fee: Zone II $18,000.00
280-4082
PART I. Reimbursement Fee N/A
Page 2 of 11
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 as required by the CITY. 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 AGREEM;~ENT, the DEVELOPER agrees to deliver a
properly executed grant deed to the CITY of the dedicated property 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:
i. A preliminary title report issued by a title insurance company relating to the
property offered for dedication.
ii. A standard policy of title insuuance issued by a title insurance company and
insuring the CITY in the sum of N/~~, 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 tl~e 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, ~~r 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 peric-d 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 DEVELOPEF'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 sidewalks, handicap ramps, street lights, 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
Work shall be done in accordance with existing ordinances and resolutions of the CITY and
in accordance with all plans, specifications, and standards approved by the City Engineer.
Page 3 of 11
'The Work shall be done in accordance with all State and County Statutes applicable hereto.
The decision of the City Engineer shall be final as to whether any material or workmanship
meets the plans, specifications, and standarcis 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.
D. 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.
E. 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.
3. QUITCLAIM DEED
It is further agreed that the DEVELOPER, when requested by the CITY, shall quitclaim all
his/her rights and interests in, and shall grant to CITY authorization to extract water from
the underground strata lying beneath said project. DEVELOPER agrees to execute a
"Quitclaim Deed and Authorization" in favor of CITY, when presented to him/her 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 ass~zre his/her full and faithful performance of this
AGREEMENT. The penal sum of said faithful performance bond is as set forth in Part A of
the SCHEDULE OF BONDS, FEES AND DEPOSITS. 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 as set forth in
Part B of the SCHEDULE OF BONDS, FEES AND DEPOSITS. Said bonds shall be
executed by a surety company authorized to transact a surety business in the State of
California and have been approved by the (:ity Attorney as to form and by the City Engineer
as to sufficiency. In the event that the DEVELOPER shall fail to faithfully 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 indemnifi~ 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:
Page 4 of 11
i. Cash; or,
ii. A cashier's check, or a certified check payable to the order of the City of
Cupertino; or,
iii. 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 faithful performance surety
bond. In the event that the DEVELOPER small fail to faithfully 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. Schedule for bond and insurance release for
paper bonds aze as follows:
i. Release of 90 percent of the faithful performance bond upon acceptance by
City Council.
ii. 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.
iii. 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
such bond.
iv. 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 yeaz if all deficiencies have bec;n corrected and in the absence of any claim
against such insurance.
5. CHECKING AND INSPECTION FEE
It is further agreed that the DEVELOPER sh~~il 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 (Pact 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. DEVELOPMENT MAINTENANCE DEPOSIT
Page 5 of 11
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 D) as a development
maintenance deposit. The deposit may be used at the discretion of the City to correct
deficiencies and conditions caused by the DEVELOPER or his/her contractor that may arise
during or after the construction of the development. The deposit shall also be used for
copies of approved plans for the CITY's file;. If the cost exceeds the amount deposited the
DEVELOPER is required to pay actual overage prior to return of original plans. Any
unexpended amount will be returned to the DEVELOPER at the time all bonds are released
in accordance with paragraph 4 of this agreement.
7. 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).
8. STREET LIGHT -ONE YEAR POWER COST
It is further agreed that the DEVELOPER s}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.
9. MAP CHECKING FEE
It is further agreed that the DEVELOPER sh;~ll 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 1\fo. 47 (Revised 12/04/61) of CITY, the amount
as set forth herein at Page 2 (Part G).
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 shall pay such fees and/or dedicate such land to
the CITY, prior to execution of this AGREEMENT, as is required within Section 18-1:602,
Park Land Dedication, Cupertino Municipal Code, and which is further stipulated herein at,
Page 2 (Part H). Fees are also in accordance with action adopted by the City Council on
March 19, 1991 and Chapter 14.05 or Sectio~i 18-1.602 of the Cupertino Municipal Code.
12. REIMBURSEMENT FEE
Page6of11
It is further agreed that the DEVELOPER shall deposit with the CITY, prior to execution of
this AGREEMENT, a reimbursement fee for the street improvements that have been
installed by the City, or by another property owner. Developer shall pay the City for the
cost of the land at the cost to the City, or smother property owner, and shall pay a street
improvement reimbursement charge for the improvements which the City or another
property owner, installed on the street abutting or included in the benefited property, in an
amount equal to the total improvement costs for each particular benefited property as set
forth in a reimbursement agreement, in the amount as set forth herein at Page 2 (Part I).
Payments for both land and improvements shall include simple interest in the amount of
seven percent per year, to be calculated in the following manner:
A. Land Cost. Interest to accrue from the date the street improvements are accepted by
the City to the date the street improvements reimbursement charge is paid, or if the land is
purchased by the City for a City project, from the date of purchase to the date the charge is
paid.
B. Improvement Cost. Interest to accn.te from the date the street improvements are
accepted by the City to the date the street irr.~provement reimbursement charge is paid, or if
installed by the City, from the date installatio n commenced to the date the charge is paid.
C. Provided, however, that the interest shall be waived if the adjoining property owner
dedicates or has dedicated to the City land necessary for the street improvements, or where
no such dedication is necessary.
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 Plates 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 the 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.
Page 7 oi' 11
15. GOVERNMENT COSTS
It is further agreed that the DEVELOPER sriall file with the CITY, upon execution of this
AGREEMENT, substantial evidence that all ~~rovisions of Section 66493, Article 8, Chapter
4 of the Government Code, pertaining to spe~~ial assessments or bonds, have been complied
with.
16. PACIFIC GAS AND ELECTRIC/ AT&T
It is further agreed that the DEVELOPER s11al1 pay to Pacific Gas and Electric Company
and/or to AT&T, any and all fees required fir 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 Z1o. 331 of CITY when the DEVELOPER is
notified by either the City Engineer or Pacific Gas and Electric Company and/or AT&T that
said fees are due and payable.
17. 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/her own cost and expense.
It is provided, however, that in the event e-minent 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, ;hall 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 vrith the City of Cupertino.
18. HOLD HARMLESS
It is further agreed that, commencing v~rith the performance of the Work by the
DEVELOPER or his/her contractor and cont~~nuing 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 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.
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 o~- required to be done hereunder, a policy of
Page 8 of 11
insurance naming the CITY and members ~~f the City Council of the City of Cupertino
individually and collectively, and the ofi~cers, agents and employees of the CITY
individually and collectively, as insured. S~~id 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 oc~~urrence 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 declazations, 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 ca led upon to cover a loss under said additional
policy.
The insurance carrier shall provide proof of t}ieir ratings. All ratings should be Best's Guide
Rating of A, Class VII or better or that is acc<;ptable to the CITY.
A. Each of said policies of insurance shall provide coverage in the following minimum
amounts: for general liability for bodily injury, personal injury and property damage
$1,000,000 each occurrence, with an aggregate limit of not less than $2,000,000.
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 :>atisfactory to said City Engineer. Each such
policy or policies shall bear an endorseme~zt precluding the cancellation or reduction in
coverage without giving the City Engineer at least ten (10) days advance notice thereof. The
CITY shall be shown as additionally insured on a separate "Additional Insured Owners,
Lessees or Contractors" (Form A) or (Foirn B) Endorsement provided along with the
evidence of said foregoing policy of policies ~~f 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 th~~ provision set forth herein and above for the
protection of the CITY shall equally apply to municipality and political subdivision.
D. DEVELOPER to use City supplied forms for proof of insurance and endorsements to
policy as specified above.
20. 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 mylaz blackline and five (5) prints of fully executed pazcel map.
B. A mylaz blackline and twelve (12) prints of fully executed improvement plans.
Page 9 oi~ 11
21. SUCCESSORS
This AGREEMENT shall bind the heirs, adnninistrators, executors, successor, assignee and
transferees of the DEVELOPERS. The assig~~rnent of this AGREEMENT shall not be made
without approval by the City Council of the C ity 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 name to be affixed the day and year first above
written.
CITY OF CUPERTINO:
Approv d as to form:
~G~ ..~
City Attorney
\ < ~~ ~~
Mayor
-2
City Clerk
DEVELOPER:
Attach Notary acknowledgement
Bill Marci
Marci Properties, LLC
Page 1 l oi' 11
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State of California
County of ~ ~~- C I ~''~`~"
On A~us1- 1~°`' ~~o~ before me, ~~~ k- Qc,;~I , p~o1~.~ ~~~
Date Here Insert Name and Title of the ffic- e~
personally appeared W i I-t--I ~ m ,r:=_ ~ ~c !
Name(a,)_ot Signer(s)
who prove~~ to me on the basis of satisfactory evidence to
be the per~on(~ whose name( is/aee subscribed to the
within instrument and acknowledged to me that
helsi~eltiae~~ executed the same in his~lher~eif= authorized
capacity(i~s), and that by his/feir signature(~j on the
instrument the person, or the entity upon behalf. of
which the person(,s~ acted, executed the instrument.
pAKSNA K: PATEI
"~' Commisslon # 1575295
- Notary Pub!!c - Caltfornla
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Place Notary Seal Abwe
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
Signature_ ~ u~i" 1
Signature of Notary Public
OPTIONAL -
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment o/ this form to another document.
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^ Partner - ^ Limited ^ General
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O Guardian or Conservator
^ Other:
Signer is Representing:
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®2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth. CA 91313-2402 • www.NationatNOtaryorg Item k5907 Reorder. CaIIToll-Free 1-800-876.6827
AGREEN[ENT
10056 Orangf~ Avenue
APN: 3 57-17-058
This AGREEMENT made and entered into this ~~' day of ~Ge o c ;-- 2008, by
and between the CITY OF CUPERTINO, a municipal corporation of the State of California,
hereinafter designated as CITY, and Marci Properties, LLC hereinafter designated as DEVELOPER.
WITNES>ETH
WHEREAS, the DEVELOPER has made application to the CITY to secure a Building
Permit to construct One single family dwelling and 7'wo Commercial building with single family
dwelling in Multi use hereinafter referred to as "Proje~;t".
WHEREAS, CITY hereby approves the improvement plans and specifications prepared for the
Project by Nelsen Engineering, 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".
WHEREAS, pursuant to the provisions of thin 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
Street Improvement Category:
PART A. Faithful Performance Bond:
110-2211
PART B. Labor and Material Bond:
110-2211
PART C. Checking and Inspection Fee:
110-4538
PART D. Development Maintenance Deposit:
110-2211
PART E. Storm Drainage Fee -Basin 2
215-4072
PART F. Street Light -One-Year Power Cost:
110-4537
PART G. Map Checking Fee:
110-4539
PART H. Park Fee: Zone II
280-4082
PART I. Reimbursement Fee
$53,326.00
$53,326.00
$3,847.00
$2,000.00
$556.61
$150.00
$.00
$18,000.00
N/A
Page 2 of 11
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 as required by the CITY. Said
dedicated property shall be free and clear of all liens or encumbrances except those, which
the CITY shall waive in writing. The DE~~ELOPER 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 AGREEMENT, the DEVELOPER agrees to deliver a
properly executed grant deed to the CITY of the dedicated property and such other executed
conveyances, or instruments necessary to ~~onvey clear title as herein required. The
DEVELOPER shall provide, at the DEVELOPER'S sole cost and expense, to the City:
i. A preliminary title report issued by a title insurance company relating to the
property offered for dedication.
ii. 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 exce;pt 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 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. No final inspection shall be
granted or street improvements shall not be accepted unless all the requirements for safety
purposes are installed, such as sidewalks, handicap ramps, street lights, 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
Work shall be done in accordance with existing; ordinances and resolutions of the CITY and
in accordance with all plans, specifications, acid standards approved by the City Engineer.
Page 3 of 1 ].
The Work shall be done in accordance with gill State and County Statutes applicable hereto.
The decision of the City Engineer shall be final as to whether any material or workmanship
meets the plans, specifications, and standards 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 iri accordance with the specifications of the
Cupertino Sanitary District where applicable.
D. Wherever the words "State" or "Calif ~nua 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.
E. 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 preceder-ce over and be used in lieu of such conflicting
portions.
3. QUITCLAIM DEED
It is further agreed that the DEVELOPER, when requested by the CITY, shall quitclaim all
his/her rights and interests in, and shall grant to CITY authorization to extract water from
the underground strata lying beneath said project. DEVELOPER agrees to execute a
"Quitclaim Deed and Authorization" in fav~~r of CITY, when presented to him/her for
signature.
4. BONDS AND OTHER SECURITY
A. Upon the execution of this AGREEIv1ENT, the DEVELOPER shall file with the
CITY a faithful performance bond to assure his/her full and faithful performance of this
AGREEMENT. The penal sum of said faithful performance bond is as set forth in Part A of
the SCHEDULE OF BONDS, FEES AND D1=?POSITS. 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 as set forth in
Part B of the SCHEDULE OF BONDS, FEES AND DEPOSITS. Said bonds shall be
executed by a surety company authorized to transact a surety business in the State of
California and have been approved by the City Attorney as to form and by the City Engineer
as to sufficiency. In the event that the DEVELOPER shall fail to faithfully 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 do
so.
B. In lieu of a surety bond, the DEVELOPER may elect to secure this AGREEMENT
by depositing with the CITY:
Page 4 of 1 l
i. Cash; or,
ii. A cashier's check, or a certified check payable to the order of the City of
Cupertino; or,
iii. A certificate of deposit, or instrument of credit meeting the requirements of
Government Code Section 66499 (b) c-r (c).
C. The amount of said cash, checks, certificate of deposit, or instrument of credit shall
be as designated by the City Engineer, and sl:~all 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 shall fail to faithfully 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. Schedule for bond and insurance release for
paper bonds are as follows:
i. Release of 90 percent of the faithful performance bond upon acceptance by
City Council.
ii. Release of the remaining 10 ~~ercent 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.
iii. 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
such bond.
iv. 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.
5. CHECKING AND INSPECTION FEE
It is further agreed that the DEVELOPER shall pay any and all necessary direct expenses for
inspection, checking, etc. incurred by CIT~~ 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 i:; calculated, the City Engineer shall notify
DEVELOPER of any additional sum due and ~~wing as a result thereof.
6. DEVELOPMENT MAINTENANCE DEPOSIT
Page 5 of l 1
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 D) as a development
maintenance deposit. The deposit may be used at the discretion of the City to correct
deficiencies and conditions caused by the DEVELOPER or his/her contractor that may arise
during or after the construction of the development. The deposit shall also be used for
copies of approved plans for the CITY's files. If the cost exceeds the amount deposited the
DEVELOPER is required to pay actual overage prior to return of original plans. Any
unexpended amount will be returned to the DEVELOPER at the time all bonds are released
in accordance with paragraph 4 of this agreement.
7. STORM DRAINAGE FEE
It is further agreed that the DEVELOPER shell deposit with the CITY, prior to execution of
this AGREEMENT, a storm drainage charge 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):
8. STREET LIGHT -ONE YEAR POWER COST
It is further agreed that the DEVELOPER shall 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.
9. 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 G).
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 CIT'~ approved list.
11. PARK FEES
It is further agreed that the DEVELOPER shall pay such fees and/or dedicate such land to
the CITY, prior to execution of this AGREEr/IENT, as is required within Section 18-1.602,
Park Land Dedication, Cupertino Municipal (:ode, and which is further stipulated herein at,
Page 2 (Part H). Fees are also in accordance with action adopted by the City Council on
March 19, 1991 and Chapter 14.05 or Section 18-1.602 of the Cupertino Municipal Code.
12. REIMBURSEMENT FEE
Page 6 of l 1
It is further agreed that the DEVELOPER shill deposit with the CITY, prior to execution of
this AGREEMENT, a reimbursement fee for the street improvements that have been
installed by the City, or by another property owner. Developer shall pay the City for the
cost of the land at the cost to the City, or another property owner, and shall pay a street
improvement reimbursement chazge for the improvements which the City or another
property owner, installed on the street abutti~ig or included in the benefited property, in an
amount equal to the total improvement cost: for each particulaz benefited property as set
forth in a reimbursement agreement, in the amount as set forth herein at Page 2 (Part I).
Payments for both land and improvements :hall include simple interest in the amount of
seven percent per yeaz, to be calculated in the following manner:
A. Land Cost. Interest to accrue from th~~ date the street improvements aze accepted by
the City to the date the street improvements reimbursement chazge is paid, or if the land is
purchased by the City for a City project, from the date of purchase to the date the chazge is
paid.
B. Improvement Cost. Interest to accn~e from the date the street improvements aze
accepted by the City to the date the street improvement reimbursement chazge is paid, or if
installed by the City, from the date installation commenced to the date the chazge is paid.
C. Provided, however, that the interest shall be waived if the adjoining property owner
dedicates or has dedicated to the City land ne;cessary for the street improvements, or where
no such dedication is necessary.
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 the 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 aze available to serve
all lots within said Project.
Page 7 of ] 1
15. GOVERNMENT COSTS
It is further agreed that the DEVELOPER shall file with the CITY, upon execution of this
AGREEMENT, substantial evidence that all 1-rovisions of Section 66493, Article 8, Chapter
4 of the Government Code, pertaining to special assessments or bonds, have been complied
with.
16. PACIFIC GAS AND ELECTRIC/ AT&T
It is further agreed that the DEVELOPER shall pay to Pacific Gas and Electric Company
and/or to AT&T, any and all fees required for installation of overhead and/or underground
wiring circuits to all electroliers within saki property and any and all fees required for
undergrounding as provided in Ordinance rdo. 331 of CITY when the DEVELOPER is
notified by either the City Engineer or Pacific Gas and Electric Company and/or AT&T that
said fees are due and payable.
17. 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 DEVELOPEF: at his/her own cost and expense.
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 v~rith the City of Cupertino.
18. HOLD HARMLESS
It is further agreed that, commencing with the performance of the Work by the
DEVELOPER or his/her 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 arising out of the perfomance 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 tl~.e CITY or the CITY'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
Page 8 of 11
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. Spud 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 oi' said DEVELOPER. Both bodily injury and
property damage insurance must be on an occ:urrence 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 the CITY, its members of the City Council
individually and collectively, and the ofFi cers, 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 should be Best's Guide
Rating of A, Class VII or better or that is acceptable to the CITY.
A. Each of said policies of insurance shal!1 provide coverage in the following minimum
amounts: for general liability for bodily injury, personal injury and property damage
$1,000,000 each occurrence, with an aggregate: limit of not less than $2,000,000.
B. The DEVELOPER shall file with tree City Engineer at or prior to the time of
execution of this AGREEMENT by the DE-VELOPER such evidence of said foregoing
policy or policies of insurance as shall be s~rtisfactory 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. The
CITY shall be shown as additionally insured on a separate "Additional Insured Owners,
Lessees or Contractors" (Form A) or (Fornn 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.
D. DEVELOPER to use City supplied forms for proof of insurance and endorsements to
policy as specified above.
20. 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 (5) prints of fully executed parcel map.
B. A mylar blackline and twelve (12) prints of fully executed improvement plans.
Page 9 of 11
21. SUCCESSORS
This AGREEMENT shall bind the heirs, administrators, executors, successor, assignee and
transferees of the DEVELOPERS. The assignment of this AGREEMENT shall not be made
without approval by the City Council of the Ciry 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 narr~e to be affixed the day and year first above
written.
CITY OF CUPERTINO:
Approved as to form:
~ ~.
. ,./-' i~
C Attorney
Attach Notary acknowledgement
_ ~_"_``
I,
Mayor
Crty Clerk
DEVELOPER:
' ~~_
Bill Marci
Marci Properties, LLC
Page 11 of 11
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State of California
County of ~~t~ ~~ a~~
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On _ ~u.yt~.St' ~ 1 02~ ~~ before me, _L~~sla. k r a~~ 1 ~ n n} uy~t t' ~-t.- -Ci c _
Date Here Insert Name and Title of Offic
personally appeared u; I L i_ t AM ~ . M A e~' t -1~T L
Nanie(~) of Signer(
who proved to me on the basis of satisfactory evidence to
be the person( whose name( is/are subscribed to the
within instrument and acknowledged to me that
he/siaal~.y executed the same in his/herf~ei~ authorized
capacity(iesj, and that by his/her><#~ieir signatures on the
instrument the person(g~, or the entity upon behalf. of
which the person(s) acted, executed the instrument.
I certify uncjer PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hand and offici I s I.
Signature _
Place Notary Seal Above Sign a of Notary Public
OP~'lON,4L -
Though the information below !s not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of f»is form to another document.
Description of Attached Document ,1
Title or Type of Document: t~C~-=~1~(~ ~;
Document Date: _ Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
^ Individual
^ Corporate Officer -Title(s): -
^ Partner - ^ Limited ^ General
^ Attorney in Fact
^ Trustee
O Guardian or Conservator
^ Other: __ ___
Signer Is Representing:
pAKSHA K. PATE
Commission # 1575295 Z
- (Votary Public - C~allfornia a
z ~;;~~-; ., j Sc7nica Giora County
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~;.~~' s ~r~e,-s Expires 4`Acay 2, 2C1rt~
_y. C~'ty _.,.
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Signer's Name:
^ Indivicual
^ Corporate Officer -Title(s):
^ Partner - ^ Limited ^ General
^ Attornay in Fact
^ Truster
^ Guardian or Conservator
^ Other:
Signer Is Representing:
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m2007 National Notary Associations 9350 De Soto Ave., P.O.Box 2402 •ChatswoM, CA 97313-2402• w~vo.NationalNOtaryorg Item #5907 vPeorder:CallToll-Free 1-800-876.6827