15-056 Subdivision agreement, 21815 Lomita Ave , APN 357-16-061 RECORDING REQUESTED BY: - -- -- ------— - -- — - -
DOCUMENT: 22990205 Pages: 16
City of Cupertino
Fees. . . . No Fees
Taxes. . .
WHEN RECORDED,MAIL TO:
Copies. ,
AMT PAID
City Clerk's Office
City of Cupertino REGINA ALCOMENDRAS RDE # 026
10300 Torre Avenue SANTA CLARA COUNTY RECORDER 6/17/2015
Cupertino, CA 95014-3255 Recorded at the request of 11 :27 AM
j City
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
NO FEE IN ACCORDANCE
WITH GOV. CODE 27383
SUBDIVISION AGREEMENT
21815 Lomita Avenue, Cupertino, CA
APN 357-16-061
KOriginal
Cl For Fast Endorsement
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City of Cupertino
SUBDIVISION AGREEMENT
21815 Lomita Avenue,Cupertino,CA
AP N:357-16-061
This AGREEMENT("Agreement")is made and entered into this eO/ day of -rd"u/&
2015, by and between the CITY OF CUPERTINO, a municipal corporation of the State of California, ("CITY"),
and 21815 Lomita Avenue, LLC, a California Limited Liability Company ("Subdivider") for two single family
residential units located at 21815 Lomita Avenue.
RECITALS
1. Pursuant to the Subdivision Map Act of the State of California and the City's local ordinances and
regulations relating to subdivision maps, Subdivider has presented to the City for approval a final
subdivision map(the"Map")forthe subdivision of certain real property in the City of Cupertino,designated
as Parcel Map for two lot subdivision at 21815 Lomita Avenue(the"Subdivision").
2. Subdivider has prepared and City has approved the following plans and related specifications
(the "Improvement Plans")for construction, installation and completion of certain public improvements in
connection with the Subdivision (the "Improvements). The Improvement Plans are on file in the City's
Department of Public Works and are incorporated into this Agreement by this reference.
3. Subdivider, has also offered for dedication to City certain streets, ways and easements
delineated on the Map(the"Dedications").
4.On 0 10/0 / 20 /5. the Director of Public Works approved the Map and offers of
dedication show on the Map, conditioned on Subdivider entering into this Agreement to construct and
complete the Improvements.
NOW, THEREFORE, in consideration of City's approval of the Map, and in order to insure
satisfactory performance by Subdivider of its obligations under the Subdivision Map Act and the Cupertino
Municipal Code,City and Subdivider agree as follows:
1. SUBDIVIDEWS OBLIGATION TO CONSTRUCT IMPROVEMENTS
a. Completion of Improvements. Subdivider,at its own expense, and in compliance with all provisions
of the Subdivision Map Act, the Cupertino Municipal Code, the Map and any amendments thereto, and
other applicable laws, shall furnish, install, and construct all required improvements in conformance with
the Improvement Plans. 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.
b. Compliance with applicable laws and rules. Subdivider shall construct the Improvements and the
improvements shall be constructed in accordance with the most current Standard Specifications of the
Department of Public Works, California Department of Transportation, State of California, and in
accordance with the specifications of the Cupertino Sanitary District where applicable.Wherever the words
"State"or"California Division of Highways"are mentioned in the State Specifications, it shall be considered
as referring to the City of Cupertino; also wherever the "Director" or "Director of Public Works" is
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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.
c. Repair and replacement of damaged public facilities. Subdivider shall, at its own expense, repair or
replace all public improvements, public utility facilities, surveying monuments and other public facilities
that are destroyed or damaged as a result of any work under this agreement. Subdivider shall promptly
notify the City Engineer of such damage and shall obtain the City Engineer's approval of all repair and
replacement of damaged facilities.
d. Subdivider's responsibility until City's acceptance. Until City accepts the Improvements, Subdivider
shall be responsible for the care and maintenance of such improvements and shall bear all risks of loss or
damage to the improvements. City shall not have any liability for any accident, loss or damage to the
Improvements prior to their completion and acceptance by City. City's acceptance of the Improvements
shall not constitute a waiver of any defects in the Improvements or Subdivider's obligation to repair such
defects as provided in section 9 of this Agreement.
e. Time for installation of improvements. SUBDIVIDER shall install and complete the Improvements
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 pursuant to section 1(f) of this Agreement (time
extensions). In the event the SUBDIVIDER 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 all costs incurred thereby
from the SUBDIVIDER or the SUBDIVIDER'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.
f.Time extensions.The City Engineer, in his or her sole discretion, may approve, in writing,a request for
extension or completion of the time required for construction of the Improvements upon a showing of
good cause by the Subdivider.Good cause may include delay resulting from an act of the City, acts of God,
strikes, boycotts, or similar job actions which prevent the conduct of the work. In approving a request for
time extension,the City Engineer may impose reasonable related conditions, such as requiring Subdivider
to furnish new or modified improvement security guaranteeing performance of this Agreement, as
extended, in an increased amount necessary to compensate for any projected increase in the estimated
total cost of Improvements,as determined by the City Engineer.
g. Permits. Subdivider shall, at its own expense,obtain and comply with the conditions of all necessary
permits and licenses for the construction of the Improvements and give all necessary notices and pay all
fees and taxes required by law.
2.ACQUISITION AND DEDICATION OF EASEMENTS OR RIGHTS OF WAY
a.SUBDIVIDER offers to dedicate the real property shown on the Parcel Map as filed for record with the
County of Santa Clara, which .is made a part hereof by reference (the "Dedicated Property"). Upon the
condition precedent that the SUBDIVIDER shall perform each and every covenant and condition of this
AGREEMENT,the CITY agrees to accept said real property offered for dedication.
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The Dedicated Property shall be free and clear of all liens or encumbrances except those which the CITY
agrees to waive in writing. Subdivider agrees not to revoke this offer of dedication, and to keep said offer
open until the CITY accepts offer. Upon execution of this Agreement, Subdivider agrees to deliver a
properly executed grant deed to the CITY of the real property described in the Parcel Map, and such other
executed conveyances, or instruments necessary to convey clear title as herein required. The SUBDIVIDER
shall provide, at the SUBDIVIDERS sole cost and expense, to the City at the time of acceptance of
dedication and recordation of deed, (1) a preliminary title report issued by a title insurance company
relating to the property offered for dedication, and (2) a standard policy of title insurance issued by a title
insurance company and insuring the CITY,showing that the Dedicated Property is free and clear of all liens
or encumbrances except any that the City expressly agreed to waive.
b. Subdivider shall acquire any easement and right-of-way necessary for completion of the Project at its
own cost and expense. However,that in the event eminent domain proceedings are required,the CITY for
the purpose of securing said easement and right-of-way, SUBDIVIDER 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.
3.INSPECTION AND FINAL ACCEPTANCE
a. Subdivider shall at all times maintain proper facilities and safe access for inspection of the
Improvements by the City Engineer.
b. Upon completion of the improvements or any category of improvements in compliance with the
Improvement Plans and all applicable City standards,then the City Engineer shall certify completion of the
Improvements. Subdivider shall bear all costs of inspection and certification for acceptance.Acceptance by
the City Engineer shall not constitute a waiver by the City of any defects in the Improvements.
4.QUITCLAIM DEED
SUBDIVIDER,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. SUBDIVIDER
agrees to execute a "Quitclaim Deed and Authorization" in favor of CITY, when presented to him/her for
signature.
S.SECURITY
a. Required Security. Prior to execution of this Agreement, Subdivider shall provide the following
security to City in a form acceptable to the City:
(1) Faithful performance. Security for faithful performance in the amount set forth in Part A of
Exhibit A,the SCHEDULE OF BONDS, FEES AND DEPOSITS.
(2) Labor and Materials. Security for labor and materials in the amount set forth in Part B of Exhibit
A,the SCHEDULE OF BONDS, FEES AND DEPOSITS.
b._Form of Security. Subdivider shall provide as security, bonds executed by a surety company
authorized to transact a surety business in the State of California and approved by the City as to sufficiency.
In the event that the SUBDIVIDER shall fail to faithfully perform the covenants and conditions of this
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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
SUBDIVIDER'S failure to do so.
In lieu of a surety bond,the SUBDIVIDER may elect to secure this AGREEMENT by depositing with the CITY
(1) Cash; (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 acceptable to the City and meeting the requirements of
Government Code Section 66499 (a) or (b). 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 SUBDIVIDER furnished the CITY with a faithful performance surety bond.
In the event that the SUBDIVIDER 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.
c. Release of Security. No release of surety bond, cash deposit, check or certificate of deposit shall be
made except upon approval of the Director of Public Works. Schedule for bond and insurance release for
paper bonds are as follows:
(1) Release of 90 percent of the faithful performance bond upon acceptance by the Director of
Public Works.
(2) 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.
(3) 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,reduced to
an amount equal to the total amount claimed by all claimants for whom liens have been filed
and of which notice has been given to the City, plus an amount reasonably determined by the
City Engineer to be required to assure the performance of any other obligations secured by the
security.The balance of the security shall be released upon settlement or release of all claims
and obligations for which the security was given.
(4) Liability insurance, provided by the SUBDIVIDER 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 the insurance.
6.PAYMENT OF REQUIRED FEES
a. Permits and licenses. Subdivider shall, at its sole expense, obtain all necessary permits and licenses
for the construction and installation of the Improvements, give all necessary notices, and pay all fees
required by City ordinance, including but not limited to the fees described in this Agreement, and all taxes
required bylaw.
b. Fees. Subdivider shall pay fees in the amounts set forth in Exhibit A, including but not limited to the
following,as required:
(1) Inspection Fees. SUBDIVIDER shall pay all necessary direct expenses for inspection, checking,
etc.incurred by CITY in connection with said Project,and that SUBDIVIDER shall have deposited
sufficient funds with CITY, prior to execution of this AGREEMENT. Should construction costs
vary materially from the estimate from which this sum is calculated, the City Engineer shall
notify SUBDIVIDER of any additional sum due and owing as a result thereof.
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(2) Storm Drainage Fee. SUBDIVIDER shall 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.
(3) Map Checking Fee. SUBDIVIDER 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.
(4) Park Fee. SUBDIVIDER 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. Park fees are calculated in accordance with action originally adopted
by the City Council on March 19, 1991 and Chapter 14.05 or Section 18-1.602 of the Cupertino
Municipal Code and as subsequently amended.
(5) Reimbursement Fee. SUBDIVIDER shall deposit with the CITY, prior to execution of this
AGREEMENT,a reimbursement fee for any street improvements that have been installed by the
City,or by another property owner. Subdivider 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 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. 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:
(i)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.
(ii)Improvement Cost. Interest to accrue from the date the street improvements are
accepted by the City to the date the street improvement reimbursement charge is paid, or
if installed by the City,from the date installation commenced to the date the charge is paid.
(iii) 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.
7.DEVELOPMENT MAINTENANCE DEPOSIT
SUBDIVIDER shall pay to the CITY, prior to execution of this AGREEMENT,the amount set forth in Exhibit A
as a development maintenance deposit. City may use the deposit at its discretion to correct deficiencies
and conditions caused by the SUBDIVIDER or his/her contractor that may arise during or after the
construction of the development, and to obtain copies of approved plans for the CITY's files. If the costs
exceed the amount deposited, SUBDIVIDER shall pay actual overage prior to return of original plans. Any
unexpended amount will be returned to the SUBDIVIDER at the time all bonds are released in accordance
with paragraph 5 of this agreement.
8.STREET TREE INSTALLATION
SUBDIVIDER shall provide funds to the City for purchase and planting of street trees as deemed appropriate
by the City Engineer; or shall, at the discretion and at such time as deemed appropriate by the City
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Engineer, plant street trees in conformance with the standards of the City of Cupertino. The variety,
number and location of trees are subject to City's prior approval.
9. MAINTENANCE AND WARRANTY
a. Warranty Period. Subdivider guarantees and warrants the Improvements and agrees to remedy
any defects, damages, or imperfections in the Improvements arising from faulty or defective materials or
construction of the Improvements for a period of one (1) year after City's final acceptance of the
Improvements. Subdivider's obligation under this section shall include the repair, replacement, or
reconstruction of all irrigation systems and all trees,shrubs,ground cover and landscaping for the required
one-year period.
b* Warranty repairs and replacements. If, within the warranty period, the Improvements or any
part of the Improvements fail to fulfill any of the requirements of this Agreement or the Improvement plans
and specifications, Subdivider shall repair, replace or reconstruct any defective or otherwise unsatisfactory
parts of the Improvements without delay and at no cost to City. If(a) Subdivider fails to commence repairs
within thirty (30) days of the date of mailed written notice from City, or (b) City determines that public
safety requires repair before Subdivider can be notified, City may, at its sole option, perform the required
repair itself.Subdivider agrees to pay the cost of any repairs City performs pursuant to this agreement and
City may,at its sole option,recover that cost as a lien against Subdivider's property.
10. SANITARY DISTRICT
SUBDIVIDER shall file with the CITY, upon execution of this AGREEMENT, a letter from the Cupertino
Sanitary District stating that the SUBDIVIDER has submitted plans for review by the District and that
sanitary sewers are available to serve all lots within the Project.
11. GOVERNMENT COSTS
SUBDIVIDER shall file with the 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.
12. UTILITIES
SUBDIVIDER shall pay to Pacific Gas and Electric Company,AT&T, and/or appropriate utility companies, all
fees required for installation of overhead and/or underground wiring circuits to all electroliers within said
property and all fees required for undergrounding as provided in Ordinance No. 331 or subsequently
adopted ordinances of CITY or regulations of the appropriate utilities when the SUBDIVIDER is notified by
either the City Engineer, Pacific Gas and Electric Company,AT&T,or appropriate utility companies that said
fees are due and payable.
13. HOLD HARMLESS AND INDEMNIFICATION
a. City or any of its officers, employees or agents shall not be liable for any injury to persons or
property occasioned by reason of the acts or omissions of Subdivider, its agents, employees, contractors
and subcontractors in the performance of this Agreement. Subdivider further agrees to protect, defend.-
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indemnify and hold harmless City, is officials, agents, and employees from any and all claims, demands,
causes of action, liability or loss of any sort, including but not limited to attorney fees and litigation
expenses, because of or arising out of acts or omissions of Subdivider, its agents, employees, contractors
and subcontractors in the performance of this Agreement, including all claims, demands, causes of action,
liability or loss because of or arising out of, in whole or in part, the design and construction of the
improvements.This indemnification and agreement to hold harmless shall extend to injuries to persons and
damages or taking of property resulting from the design or construction of the Subdivision, and the public
improvements described in this Agreement,and in addition,to adjacent property owners as a consequence
of the diversion of waters from the design or construction of public drainage systems, streets and other
public improvements.
b. Acceptance by City of the Improvements shall not constitute an assumption by City of any
responsibility for any damage or taken covered by this section. City shall not be responsible for the design
or construction of the subdivision or the improvements pursuant to the approved Improvement Plans or
map, regardless of any negligent action or inaction taken by the City in approving the plans or map, unless
the particular improvement design was specifically required by City over written objection by Subdivider,
indicating that the particular improvement design was dangerous or defective and suggested an alternative
safe and feasible design, submitted to the City Engineer before approval of the particular improvement
design.
c. After City's acceptance of the Improvements, Subdivider shall remain obligated to correct or
eliminate any defect in design or dangerous condition created by defects in design or construction,
provided however, that developer shall not be responsible for routine maintenance. Provisions of this
section shall remain in full force and effect for ten (10) years following City's acceptance of the
Improvements. Subdivider acknowledges and agrees that Subdivider shall be responsible and liable for the
design and construction of the Improvements and other work done pursuant to this Agreement and that
City shall not be liable for any acts or omissions in approving, reviewing, checking, correcting, or modifying
any Improvement Plans or related specifications or in approving, reviewing or inspecting any work or
construction. The improvement security shall not be required to cover the provisions of this paragraph
beyond the guarantee and warranty period specified in this agreement.
14. INSURANCE
SUBDIVIDER shall maintain in full force and effect at all times during the term of this Agreement and shall
provide to the CITY a copy of said insurance policy prior to starting work within the public right-of-way. The
policy of insurance shall name 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 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
SUBDIVIDER. 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.
The insurance carrier shall be licensed to do business in the state of California and 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.
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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.
SUBDIVIDER shall file with the City Engineer at or prior to the time of execution of this AGREEMENT by the
SUBDIVIDER evidence of insurance coverage satisfactory to the City. Each policy or policies shall bear an
endorsement precluding the cancellation or reduction in coverage without giving the City Engineer at least
thirty(30)days advance notice thereof.
In the event that the Improvements are situated in or affect the area of jurisdiction of a separate
municipality or political subdivision of the State of California, the required insurance shall also name the
other jurisdiction(s)as additional insured.
15. MAPS AND/OR IMPROVEMENT PLANS
Subdivider shall provide CITY with the following maps and/or plans at the SUBDIVIDER'S expense:
A. A mylar blackline and three(3)prints of fully executed parcel map.
B. A mylar blackline and three(3)prints of fully executed improvement plans.
C. A scan in raster format of all executed improvement plans and map.
D. One(1)%size prints of fully executed plans and map.
The SUBDIVIDER agrees to pay the CITY from the development maintenance deposit the cost for all prints
of plans and maps. If costs exceed the amount deposited the SUBDIVIDER is required to pay actual overage
prior to return of original plans.
16.ASSIGNMENT
Subdivider shall not assign this agreement without the prior written consent of the City.Any attempted or
purported assignment in violation of this paragraph shall be null and void and have no force or effect.The
sale or other disposition of the Project shall not relieve Subdivider of its obligations under this agreement. If
subdivider intends to sell the Project or any portion of the Project to any other person or entity,
Subdivider may request a novation of this Agreement and substitution of improvement security.
17.COVENANT RUNNING WITH THE LAND
This Agreement shall inure to the benefit of, and be binding upon the heirs, administrators, successors,
assigns and transferees of the Parties, and shall be recorded in the Office of the County Recorder and
constitute a covenant running with the land. Upon any sale or division of the Property, the terms,
covenants, conditions and restrictions of this agreement shall apply to each parcel, and the owner or
owners of each parcel shall succeed to the obligations imposed upon Subdivider by this Agreement.
18.DEFAULT, BREACH,AND REMEDIES TO CITY
a. Default. Default of Subdivider shall include,but not be limited to:
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(1) Subdivider's failure to timely commence construction of Public Improvements under
this Agreement;
(2)Subdivider's failure to timely complete construction of the Improvements;
(3)Subdivider's failure to timely cure any defect in the Improvements;
(4) Subdivider's failure to perform substantial construction work for a period of 20
consecutive calendar days after commencement of the work;
(5) Subdivider's insolvency, appointment of a receiver, or the filing of any petition in
bankruptcy, either voluntary or involuntary, which Subdivider fails to discharge within 30
days;
(6)The commencement of a foreclosure action against the subdivision or a portion thereof,
or any conveyance in lieu or in avoidance of foreclosure;or
(7)Subdivider's failure to perform any other obligation under this Agreement.
b.City reserves all remedies available to it at law or in equity for breach of Subdivider's obligations
under this Agreement. The City shall have the right, subject to this section, to draw upon or use the
appropriate security to mitigate City's damages in the event of default by Subdivider. City's right to draw
upon or use the security is in addition to any other remedy available to City.The parties acknowledge that
the estimated costs and security amounts may not reflect the actual cost of construction of the
improvements and, therefore, City's damages for Subdivider's default shall be measured by the cost of
completing the required improvements. City may use the sums provided by the security for completion of
the Improvements in accordance with the Improvement Plans.
c. In the event that Subdivider fails to cure any default under this Agreement within twenty (20)
days after the City mails written notice of such default to Subdivider and Subdivider's surety, Subdivider
authorizes City to perform the obligations for which Subdivider is in default and agrees to pay the entire
cost of such performance by City.
d. City may take over the work and complete the Improvements by contract or by any other
method the City deems appropriate,at the expense of Subdivider,and Subdivider's surety shall be liable to
City for any excess cost or damages to City resulting therefrom. In such event, City, without liability for so
doing, may take possession of and use any of Subdivider's materials, appliances, plant and other property
that are at the work site and are necessary to complete the Public Improvements.
e. Subdivider's failure to comply with the terms of this Agreement con stitutes'Subdivider's consent
for the City to file a notice of violation against all lots in the Subdivision or to rescind or otherwise revert
the subdivision to acreage.Subdivider specifically recognizes that the determination of whether a reversion
to acreage or recission of the subdivision approval constitutes an adequate remedy for Subdivider's default
shall be within City's sole discretion. The remedy provided by this Subsection is in addition to all other
remedies available to City, and Subdivider agrees that the choice of remedy or remedies for Subdivider's
breach shall be within City's discretion.
f. In the event that Subdivider fails to perform any obligation under this Agreement, Subdivider
agrees to pay all costs and expenses incurred by City in securing performance of those obligations, including
but not limited to fees and charges of architects,engineers, attorneys and other professionals, and costs of
suit and reasonably attorneys'fees.
g. City's failure to take enforcement action with respect to a default, or to declare a breach, shall
not be construed as a waiver of that default or breach or any subsequent default or breach by Subdivider.
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19. SUBDIVIDER NOT AGENT OF CITY
Neither Subdivider nor any of Subdivider's agents or contractors are or shall be considered to be agents of
City in connection with the performance of Subdivider's obligations under this Agreement.
20. SUBDIVIDER TO WARN PUBLIC
Until final acceptance of the improvements, Subdivider shall give good and adequate warning to the public
of any dangerous condition of the Improvements, and shall take reasonable actions to protect the public
from such dangerous condition.
21. NOTICES
All notices, demands,-requests or approvals to be given under this Agreement shall be given in writing and
conclusively shall be deemed served when delivered personally or on the second business day after the
deposit thereof in the United States Mail,postage prepaid,registered or certified,addressed as hereinafter
provided.
All notices,demands,requests,or approvals from Subdivider to City shall be addressed to City at:
City of Cupertino
10300 Torre Ave.
Cupertino CA 95014
Attention: Public Works Director/City Engineer
All notices,demands,requests,or approvals from City to Subdivider shall be addressed to Subdivider at:
21815 Lomita Avenue, LLC
Attn: Martha Kang
20660 Stevens Creek Blvd.#239
Cupertino,CA 95014
22. NO VESTING OF RIGHTS
Performance by Subdivider of this Agreement shall not be construed to vest Subdivider's rights with respect
to any change in any zoning or building law or ordinance.
23. TIME IS OF THE ESSENCE
Time is of the essence in the performance of this agreement by subdivider.
24. NONDISCRIMINATION
Subdivider, its agents, employees,contractors and subcontractors shall not discriminate in any way against
any person on the basis of age, sex, race, color, religion, sexual orientation, actual or perceived gender
identity, disability, ethnicity, or national origin in connection with or related to the performance of this
Agreement.
25. GOVERNING LAW AND ATTORNEY FEES
This Agreement shall be interpreted under, and enforced by the laws of the State of California excepting
any choice of law rules which may direct the application of laws of another jurisdiction. The Agreement
and obligations of the parties are subject to all valid laws, orders, rules, and regulations of the authorities
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having jurisdiction over this Agreement(or the successors of those authorities).Any suits brought pursuant
to this Agreement shall be filed with the courts of the County of Santa Clara,State of California.
If City sues to compel Subdivider's performance of this Agreement,or to recover damages or costs incurred
in completing or maintaining the work on the Improvements, Subdivider agrees to pay all attorneys' fees
and other costs and expenses of litigating incurred by the City, even if Subdivider subsequently resumes
and completes the work.
26. RELATIONSHIP OF PARTIES
Neither Subdivider nor any of its contractors,employees or agents shall be deemed to be agents of the City
in connection with the Performance of Subdivider's obligations under this agreement.
27. SEVERABILITY
The provisions of this Agreement are severable. If any portion of this Agreement is held invalid by a court of
competent jurisdiction,the remainder of the agreement shall remain in full force and effect.
28. INTEGRATED AGREEMENT
This Agreement represents the full and complete understanding of every kind or nature whatsoever
between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature
are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereof.
Any modification of this Agreement will be effective only by written execution signed by both City and
Subdivider.All unchecked boxes do not apply to this Agreement.
IN WITNESS WHEREOF, the Parties have caused this agreement to be executed by their respective, duly
authorized officers on the date listed above.
CITY OF CUPERTINO:
Approved as to form:
City Attorney Timm Borden, P.E.
Director of Public Works
SUBDIVIDER:
artha Kang, em er
21815 Lomita Ave e, LLC
Attach Notary acknowledgement for Subdivider's signatures:
Attachments:
Exhibit"A"-Schedule of Bonds, Fees, Deposits
Page 11 of 12
Exhibit A
SCHEDULE OF BONDS, FEES,AND DEPOSITS
Street Improvement Category:
PART A. Faithful Performance Bond:
110-2211
$30,000.00
PART B. Labor and Material Bond:
110-2211
$30,000.00
PART C. Checking and Inspection Fee:
110-4531
$2,224.00
PART D. Development Maintenance Deposit:
110-2211
$1,000.00
PART E. Storm Drainage Fee—Basin 3
215-4073
$1,654.00
PART F. Encroachment Permit Fee:
110-4540
$525.00
PART G. Map Checking Fee:
110-4539
$4,254.00(Paid)
PART H. Park Fee: Zone III
280-4083
$28,875.00
PART I. Street Tree Fee:
110-4567
$696.00
Page 12 of 12
CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT
3
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to
which this certificate is attached,and not the truthfulness,accuracy,or validity of that document.
1
State of California
i
County of ad ( �"
G`
1 V
On before me, 7 Notary Public,
(Here insert name and title of the officer)
personally appearedMarl-ha, ,,
who proved to me on the basis of satisfacto ` dvldence t be the person whose nam e subscribed to
the within instrument and acknowledged to me that / h t y executed the same ink I IT authorized
capacityWs), and that by e& r signatures 'on the instrument the person9), or the entity upon behalf of
which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph
is true and correct.
4, ANDREA SANDERS
Commission#2078230
WITNESS my hand and official seal. i ,=n' Notary Public-California z
Z Santa Clara C+ountlr
MX.Comm.Expires Aug17,2018.
(Notary Seal)
Signature of Notary Oic
ADDITIONAL OPTIONAL INFORMATION
INSTRUCTIONS FOR COMPLETING THIS FORM
Any acknowledgment completed in California must contain verbiage exactly as
DESCRIPTION OF THE ATTACHED DOC NT appears above in the notary section or a separate acknowledgment form must be
0 � � properly completed and attached to that document. The only exception is if a 1
la y '� document is to be recorded outside of California.In such instances,any alternative
(Title o escrip ion of ched document) acknowledgment verbiage as may be printed on such a document so long as the
�s verbiage does not require the notary to do something that is illegal for a notary in
California i.e. certifying the authorized capacity of the signer).Please check the
(Title or description of attached document continued)
document carefully for proper notarial wording and attach this form if required.
• State and County information must be the State and County where the document
Number of Pages Document Dat signer(s)personally appeared before the notary public for acknowledgment. l
• Date of notarization must be the date that the signer(s)personally appeared which
must also be the same date the acknowledgment is completed.
(Additional information) • The notary public must print his or her name as it appears within his or her
commission followed by a comma and then your title(notary public).
• Print the name(s) of document signer(s)who personally appear at the time of
notarization.
CAPACITY CLAIMED BY THE SIGNER • Indicate the correct singular or plural forms by crossing off incorrect forms(i.e. s
He/she/ is/age)or circling the correct forms.Failure to correctly indicate this
® Individual tS) information may lead to rejection of document recording.
i
Corporate Officer • The notary seal impression must be clear and photographically reproducible.
Impression must not cover text or lines.If seal impression smudges,re-seal if a
(Title) sufficient area permits,otherwise complete a different acknowledgment form.
®
Partner(s) • Signature of the notary public must match the signature on file with the office of
the county clerk.
® Attorney-in-Fact ❖ Additional information is not required but could help to ensure this
Trustee(S) acknowledgment is not misused or attached to a different document.
® Other ❖ Indicate title or type of attached document,number of pages and date.
❖ Indicate the capacity claimed by the signer.If the claimed capacity is a
corporate officer,indicate the title(i.e.CEO,CFO,Secretary).
• Securely attach this document to the signed document
C 2004-2015 ProLink Signing Service,Inc—All Rights Reserved www TheProUAcom—Nationwide Notary Service
Y
i
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document.
State of California
County of
OnTv�� 3, 2o�S before me, vc�roc� Na m
Date Here Insert Name and Title of the Officer
personally appeared Vr� f-C e_",
Name(s)of Signer(s)
who proved to me.on the basis of satisfactory evidence to be t ersonK whose nam*Gi are
o
scribed to the within instrument and acknged to me thashe/they executed the same in
hi /her/their authorized capacity(,and that b hi er/their signature�s�J on the instrument the persor ,
or the entity upon behalf of which the person acted, executed the instrument.
certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph
is true and correct.
KIRSTEN RENEE SOUARCIA WITNESS my hand and official seal.
'roCommission#2080884 `
Z ..`! Notary Public-California z
Santa Clara County A Signature
My Comm. Ex 'res Opt 4,2018 Signature of Notary Pd&1ic
Place Notary Seal Above
OPTIONAL
Though this section is optional, completing this information can deter alteration of the document or
fraudulent reattachment of this form.to an unintended document.
Description of Attached Documen A P N 3
Title or Type of Document:.S�� fil is 1 a nre-e we' i_fDocument Date: J"le- 2,6 1 S
Number of Pages: 12— Signer(s) Other Than Named Above: /41,a,-/-4 --t k 4 h!�
Capacity(ies) Claimed by Signer(s)
Signer's Name: Signer's Name:
❑Corporate Officer— Title(s): ❑Corporate Officer — Title(s):
❑Partner — ❑Limited. ❑General ❑Partner — ❑Limited ❑General
❑Individual ❑Attorney in Fact ❑Individual ❑Attorney in Fact
❑Trustee ❑Guardian or Conservator ❑Trustee ❑Guardian or Conservator
❑Other: ❑ Other:
Signer Is Representing: Signer Is Representing:
02014 National Notary Association -www.NationalNotary.org - 1-800-US NOTARY(1-800-876-6827) Item#5907
r
a a
VERIFICATION
I have reviewed this Agreement and to the best of my knowledge, the information contained
herein is true and complete.
I verify under penalty of perjury under the laws of the State of California, that the foregoing is
true and correct.
Executed on the 10th day of June, at Cupertino, California
Andrea Sand r-
Senior Off e-Assistant