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80-055 Gary and Earlinda M. Johnston Tract 6838 Vista Town Housesa Citlq Of Ct4j)CVtif1O 10300 Torre Avenue Cupertino, California 95014 Telephone (408) 252-4505 November 24, 1980 Gary R. Johnston & Earlinda M. Johnston 1101 So. Winchester Boulevard Building 0 #284 San Jose, CA 95128 AGREEMENT TRACT 6838 - VISTA TOL,TN HOUSES We are forwarding to you for your files a fully executed copy of the Agreement by and between the City of Cupertino and Gary R. and Earlinda M. Johnston, along with a copy of Resolution No. 5459 which was adopted at a regular meeting of the City Council of the City of Cupertino on October 14, 1980. Sincerel DOROTHY CORNELIUS CITY CLERK CITY OF CUPERTINO DC/so encl. RESOLUTION NO. 5459 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO APPROVING THE FINAL MAP AND IHPROVEMENT PLANS OF TRACT NO. 6838 LOCATED AT VISTA DRIVE; DEVELOPER, GARY R. JOHNSTON AND EARLINDA M. JOHNSTON; ACCEPTING CERTAIN EASEMENTS; AUTHORIZING SIGNING OF FINAL MAP AND IMPROVE- MENT PLANS; AUTHORIZING THE EXECUTION OF AGREEMENT IN CONNECTION THEREWITH WHEREAS, there has been presented to the City Council for approval and for authorization to record final map of Tract No. 6838 located along Vista Drive showing certain avenues, drives, places and roads by Gary R. Johnston and Earlinda M. Johnston; and WHEREAS, there has been presented to'the City Council a proposed agree- ment for the construction of streets, curbs and gutters, and for other improvements, and good and sufficient bonds, fees, and deposits as set forth in Exhibit "A" having been presented for the faithful performance of said work and the carrying out of said agreement; and said map, agreement, and bonds having been approved by the City Attorney; NOW, TIiEREFORE. BE IT RESOLVED THAT a. Said final map and improvement plans of Tract No. 6838, be and the same are hereby approved. b. The offer of dedication for roadway and for easements is hereby accepted. C. The City Engineer and the City Clerk are hereby authorized to sign said final map. d. The City Engineer is hereby authorized to sign the improvement plans. e. The Mayor and the City Clerk are hereby authorized to execute the agreement herein referred to. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 14th day of October , 1980 by the following vote: Vote Members of the City Council AYES: Gatto, Plungy, Sparks, Rogers NOES None ABSENT: None ABSTAIN: None ATTEST: APPROVED: /s/ Dorothy Cornelius /s/ Barbara A. Rogers City Clerk Mayor, City of Cupertino I Resolution No. 5459 I. EXHIBIT "A" SCHEDULE OF BOND, FEES, AND DEPOSITS DEVELOPMENT Tract No. 6838 Gary R. Johnston and Earlinda M. Johnston LOCATION Vista Drive A. Faithful Performance Bond: On Site: $ 13,000.00 Thirteen Thousand Dollars Off Site: 6,000.00 Six Thousand Dollars i B. Labor and Material Bond: On Site: $ 13 000.00 Thirteen Thousand Dollars Off Site: 6,000.00 Six Thousand Dollars C. Checking and Inspection Fee: $ 650.00 Six Hundred 'and Fifty Dollars 240.00 Two Hundred and Forty Dollars D. Indirect City Expenses: $ 98.00 Ninety -Eight Dollars 36.00 Thirty Six Dollars E. Map Filing Fee: $ 50.00 Fifty Dollars F. Development Maintenance Deposit $ 340.00 Three Hundred and Forty Dollars _ G. Storm Drainage Fee: $ 1,346.00 One Thousand, Three Hundred and Forty -Six Dollars H. One Year Power Cost: $ I. Tree Fees: $ By developer J. Park Fees: Five Thousand Five Hundred Eighty Dollars R. Water Main Extension Deposit $ 5,580.00 $ N/A A G R E E M E N T This AGREEMENT, made and entered into this 14th October day of , 1980, by and between the CITY OF CUPERTINO a municipal corporation of the State of California, hereinafter designated as CITY, and Gary R. and Earlinda M. Johnston hereinafter designated as Developer. W I T N E S S E T H WHEREAS said Developer desires to subdivide certain land within said City of Cupertino in accordance with the map heretofore filed with the City Council of the City of Cupertino, marked and designated Tract.6838 and Cupertino, California, hereinafter designated as "the Tract;" WHEREAS, said map shows certain courts., drives and roads which are offered for dedication for public use; and WHEREAS, said Developer desires to construct dwellings on the lots in said "Tract;" and WHEREAS, CITY hereby approves the improvement plans and specifications pre- pared for the Tract by WTW, Inc. a true copy of said 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 improve- ment 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 AGREEiENT, the CITY hereby 515 1 establishes the amount of bond,'fees and deposit as set forth in the following schedule. SCHEDULE OF BONDS, FEES AND DEPOSITS Part A. Faithful Performance Bond: On Site: $ 13,000.00 Thirteen Thousand Dollars Off Site: 6,000.00 Six Thousand Dollars Part B. Labor and Material Bond: On Site: $ 13,000.00 Thirteen Thousand Dollars Off Site: 6,000.00 Six Thousand Dollars Part C. Checking and Inspection Fee: $ 650.00 Six Hundred and Fifty Dollars 240.00 Two Hundred and Forty Dollars Part D. Indirect City Expenses: $ 98.00 Ninety -Eight Dollars 36.00 Thirty Six Dollars Part E. Map Filing Fee: $ 50.00 Fifty Dollars Part F. Development Maintenance Deposit $ 340.00 Three Hundred and Forty Dollars Part G. Storm Drainage Fee: $ 1,346.00 One Thousand, Three Hundred and Forty --Six Dollars Part H. One Year Power Cost: g Part I. Tree Fees: $ By developer Part J. Park Fees: $ 5,580.00 Five Thousand Five Hundred Eighty Dollars Part K. Water Main Extension Deposit $ N/A NOW, THEREFORE, IT IS HEREBY MUTUALLY AGREED by and between the parties hereto as follows, TO WIT: 1. INSTALLATION OF WORK It is agreed that in consideration of the approval of said map and the acceptance on behalf of the public of the courts, drives and roads offered for dadicati.on, (a) The Developer shall install and complete the Work within one (1) - 2 - 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. (b) The Developer shall install and complete the Work in a good and work- manlike manner in accordance with the plans as approved by the City Engineer of Cupertino. The Work shall be made under the inspection and with the approval of the City Engineer. The Work shall be done in accordance with existing ordin- ances and resolutions of the City of Cupertino, and in accordance with all plans, specifications, standards, sizes, lines and grades approved by the City Engineer. The Work shall be done in accordance with all State and County Statutes applicable thereto. The decision of the City Engineer shall be final as to whether any material or workmanship meets the standards, specification, plans,sizes, lines and grades as set forth. (c) It is further agreed that the Work shall be done in accordance with the Standard Specifications of the Department of Public Works, Division of Highways, State of California, dated Jan. 1973, and in accordance with the specifications of the Cupertino Sanitary District where applicable. Wherever the words "State" or "Division of Highways" are mentioned in the State Specifications, it shall be considered as referring to the City of Cupertino; also, wherever the "Director" or "Director of Public Works" is mentioned, it shall be considered as referring to the City Engineer. In case of conflict between the State Specifications and the specifications of the City of Cupertino and/or the Cupertino Sanitary District, the specifications of the City of Cupertino and/or the Cupertino Sanitary District shall take -3- precedence over and be used in lieu of such conflicting portions. 2. EXCAVATION PERMIT It is further agreed that the Developer shall comply with Section Three of Ordinance No. 130 of City of Cupertino by obtaining an excavation permit from the City Engineer before the commencement of any excavation in, on, or under the surface of any existing public street, lane, alley, sidewalk, or other public place. It is further agreed that the developer shall notify the City Engineer of the exact date and time when the proposed excavation is to commence. 3. QUITCLAIM DEED - UNDERGROUND WATER RIGHTS It is further agreed that Developer shall quitclaim all his rights and interests in, and shall grant to CITY authorization to extract water from the underground strata lying beneath said "Tract" and Developer agrees to execute a "Quitclaim Deed and Authorization" in favor of CITY, when presented to him for signature. 4. BONDS It is further agreed that prior to, or concurrent with, the execution of this AGREEMENT, the Developer shall execute and deliver to the City Engineer a faithful performance bond running to the CITY, as obligee, and a labor and material bond running to the CITY and to all contractors, subcontractors, laborers material men and other persons referred to in Chapter 2, Title 4, Part 3 of the Code of Civil Procedure of the State of California, as obligees, said performance and labor and materials bonds shall each be in the amount as established in the Schedule of Bonds, Fees, and Deposit as set forth herein at Page 2 (Parts A & B) and shall conform with the provisions of Resolution 1591 of the City Council of Cupertino. Said bonds shall be in a form acceptable to the City Engineer and shall be approved by him prior to or concurrent with the execution of this agree- ment by the CITY. -4- 5. CHECKING AND INSPECTION FEE It is further agreed that developer shall pay any and all necessary direct expenses for inspection, checking, etc., incurred by CITY in connection with said "Tract," 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 calculated, the City Engineer shall notify Developer of any additional sum due and owing as a result thereof. 6. INDIRECT EXPENSES It is further agreed that Developer shall pay to CITY, prior to execution of this AGREEMENT, indirect expenses allocable to processing this improvement, the amount as set forth herein at Page 2 (Part D). 7. MAP FILING FEE It is further agreed that the Developer shall deposit with CITY, prior to execution of this AGREEMENT, for office checking of final map and field check- ing of street monuments, in compliance with Section 4:1 of Ordinance No. 47 (Revised 12/4/61) of CITY, the amount as set forth herein at Page 2 (Part E). 8. DEVELOPMENT MAINTENANCE DEPOSIT It is further agreed that the Developer shall pay to the CITY, prior to execution of this AGREEMENT, the amount set forth herein at Page 2 (Part E) as a development maintenance deposit to insure proper dust control and cleaning during the construction period. The development maintenance deposit may be utilized for repairs of defects and imperfections arising out of or due to faulty workmanship and/or materials appearing in said work during the period until release of the improvement bonds by the CITY. Should the Developer complete the required repairs to the entire satisfaction of the CITY, the unused balance will be returned after the release of the improvement bonds. -5- 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 charge in connection with said Project in accordance with the requirements established in Resolution 4422, March 21, 1977 in the amount as set forth herein at Page 2, (Part G). 10. 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 H), which amount_represents the power cost for street lights for one year. 11. FEES FOR THE INSTALLATIOY OF STREET TREES It is further agreed that the CITY shall, at such time as deemed appro- priate by the City Engineer, plant and maintain street trees in conformance with the standards of the City of Cupertino. As payment for said installation and maintenance by the City, the Developer shall pay to the CITY-, prior to the execution of this AGREEMENT, the amount as set forth herein at Page 2 (Part I), which amount represents the fees for installation and maintenance of said street trees, having been calculated at the unit price of $15.00 per tree. 12. PARK FEES It is further agreed that the Developer shall pay such fees and/or dedicate such land to the City, prior to execution, as is required within "Park Dedication Ordinance" Number 602, 1972 and which is further stipulated under Part J, page 2 herein. 13. MAINTENANCE OF THE WORK It is further agreed that the Developer shall maintain the Work (a) for a period of one (1) year after acceptance of the Work by the City Council of City of Cupertino, or (b) until all deficiencies in the Work are corrected to conform to the Plans and the CITY standards and specifications for the Work, whichever is the later to occur. The Developer shall, upon written notice thereof, immediately repair or replace, without cost or obligation to the City of Cupertino, and to the entire satisfaction of said CITY all defects and imperfections arising out of or Im .due to faulty workmanship and/or materials appearing in said Work. 14. SANITARY DISTRICT It is further agreed that the Developer shall file with CITY, upon execution of this AGREEMENT, a letter from the Cupertino Sanitary District stating that the Developer has entered into a separate AGREEMENT with the said District to install sanitary sewers to serve all lots within said "Tract" and stating that a bond to insure full and faithful performance of the construction of the said sanitary sewers and to insure maintenance of said sanitary sewer in conformance with the provisions as set forth in paragraph No. 13 above, have been filed. 15. BUSINESS AND PROFESSIONS CODE It is further agreed that Developer shall file with CITY, upon execution of this AGREEMENT, substantial evidence that all provisions of Section 11603, Article 8, Chapter 2 of the Business and Professions Code, pertaining to special assessments or bonds, have been complied with. 16. CENTRAL FIRE DISTRICT It is further agreed that the Developer shall file with the CITY, upon execution of this AGREEMENT, a letter from the Central Fire Protection District of Santa Clara County, stating that the Developer has entered into an AGREEMENT with said District to install fire hydrants to serve said "Tract" and stating that all necessary fees have been deposited with said District to insure install- ation and five (5) year rental fee of said hydrants. 17. STREET LIGHTING - P.G.&E. RATE SCHEDULE SHALL APPLY It is further agreed that the Developer shall apply for the installation of electric power for street lighting at the earliest date possible. 18. P.G.&E. AND P.T.&T. It is further agreed that the Developer shall pay to Pacific Gas and Electric Company and/or to Pacific Telephone and Telegraph Company any and all fees required for installation of overhead and/or underground wiring circuits to all electroliers within said "Tract" and any and all fees required for undergrounding as provided in Ordinance No. 331 of CITY when Developer is notified by either the -7- City Engineer or the Pacific Gas and Electric Company and/or Pacific Telephone and Telegraph Company that said fees are due and payable. 19. EASEMENTS AND RIGHT-OF-WAY It is further agreed that any easement and right-of-way necessary for completion of the project shall be acquired by the Developer at his own cost and expense. It is provided, however, that in the event eminent domain proceedings are required by the CITY for the purpose of securing 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 CITY. 20. HOLD HARMLESS It is further agreed that, commencing with the performance of the Work by the Developer or his contractor and continuing until the completion of the maintenance of the Work as provided in paragraph 13 above, the Developer shall indemnify, hold harm -less 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 willfull misconduct of the Developer or the Developer's agents, employees and independent contractors. 21. INSURANCE It is further agreed that: The Developer shall take out, or shall require any contractor engaged to perform the Work to take out, and maintain at all times during the performance and maintenance of the Work called for or required to be done hereunder, a policy of insurance naming the CITY and members of the City Council of the City of Cupertino, individually and collectively, and the officers, agents, and employees of the CITY individually and collectively, as insured. Said go separate policy shall provide bodily injury and property damage coverage to the foregoing named CITY and individuals covering all the Work performed by, for, or on behalf of said Developer. Both bodily injury and property damage insurance must be on an occurrence basis; and said policy or policies shall provide that the coverage afforded thereby shall be primary coverage to the full limit of liability stated in the declarations, and if the CITY, its members of the City Council, individually and collectively, and the officers, agents, and employees of the CITY, individually and collectively, have other insurance against the loss covered oy said policy or, policies, that other insurance shall be-a::cess insurance only. (a) Each of said policies of insurance shall provide coverage in the following minimum amounts: for bodily injury, $100,000 each person; $300,000 each occurrence; property damage, $50,000 on account, of any one occurrence with an aggregate limit of not less than $200,000. (b) The Developer shall file with the City Engineer at or prior to the time of execution of this AGREEMENT by the Developer such evidence of said foregoing policy or policies of insurance as shall be satisfactory to 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. (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 sub- division of the State of California, the policies of insurance required herein and above shall co -name such municipality or political subdivision and the provision set forth herein and above for the protection of the City of Cupertino shall equally apply to municipality and political subdivision. - 9 - 22. WATER MAIN EXTENSION DEPOSIT The Developer further agrees to deposit with the City those monies required to comply with "Policy on Water Main Extensions Work and Deposits" dated 9/30/77. The deposit shall be held by the City until said monies are needed to implement improvements outlined by the Director of Public Works or improvements outlined within an adopted Water Master Plan. The amount shown herein at Park K, Page 2, shall be the full amount due. 23. TERMS AND CONDITIONS It is further agreed that the above named terms and conditions for the said "Tract", shall bind the heirs, successors, administrators, or assigns of the Developer. The assignment of this AGREEMENT shall not be made without approval by the City Council of said CITY. IN WITNESS WHEREOF, said 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 his name to be affixed the day and year first above written. By By CITY OF CUPERTINO —10— STATE OF CALIFORNIA ) ss. COUNTY OF SANTA CLARA) On November 17, , 19 80 , before me, the undersigned, a Notary Public in and for said State, personally appeared GARY R. JOHNSTON and EARLINDA M. JOHNSTON known to me to be the persons whose names are subscribed to the within Instrument, and acknowledged to me that they executed the same. WITNESS my hand and official seal. �= MARY D. WRIGLESWORTH NOTARY PUBLIC • CALIFORNIA SANTA CLARA COUNTY ---------------------------------- :�• My commission expires OcJ. A, 1982 .� 1 Notary P Vic in and Or the County. of Santa Clara, State of California Mary D. Wriglesworth CORPORATION ACKNO14LEDGEMENT STATE OF CALIFORNIA ) ) ss. COUNTY OF SANTA CLARA) On , 19 , before me, the undersigned, a Notary Public in and for the said State, personally appeared , known to me to be the of the corporation that executed the within Instrument, known to me to be the person who executed the within Instrument, on behalf of the Corporation herein named, and acknowledged to me that such Corporation executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal in the County of Santa Clara the day and year in this certificate first above written. Notary Public in and for the County of Santa Clara, State of California