81-005 C & H Partnership ( Jason Chartier & Martin Hall) for development of Tract 7039 - Park PlazaA G R E E M E N 'i
_ This AGREE.1,r=, made and entered into this 5th
day of
January , 1981, by and between the CITY OF CUPERTINO a municipal
corporation of the State of California, hereinafter designated as CITY, and
C F H PARTNERSHIP, a general partnership --------------------------------'----•---
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 7039
Cupertino, California, hereinafter designated as "the Tract;"
and
WHEREAS, said map shows certain courts; drives and roads which are offered
for dedication for public use; and
WEEREAS, said Developer desires to construct dwellings on the lots in said
"Tract;" and
wciEMkS , , CITY hereby approves the improvement plans and specifications pre-
pared for the Tract by Tri -Stare RnginPPring
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 AGREEYE;TT, the CITY hereby
-1-
c 4tablisl:es thE• a:r.ount of bend, fees and deposit as set forth in the following schedule.
SC}1ED'uLE OF BO DS, FEES A],D DEPOSITS
Part A. Faithful Perforu:ance Bond:
Recreation and Landscaping - One Hundred Seventy-five
Thousand Dollars $
175.000.00
Offsite - Twenty -Five Thousand and no/100 Dollars
$_
25,000.00
Onsite - Three Hundred Twenty -Eight Thousand Dollars
$
328,000.00
Part B. Labor and Material Bond:
Recreation and Landscaping - One Hundred Seventy-five
Thousand Dollars $
175.000.00
Offsite - Twenty -Five Thousand and no/100 Dollars
$
25,000.00
Onsite - Three Hundred Twenty -Eight Thousand Dollars
$
328,000.00
Part C. Checking and Inspection Fee:
Recreation and Landscaping - No Dollars
Offsite - One Thousand and no/100 Dollars
Onsite - Thirteen Thousand One Hundred Twenty Dollars
Part D. Indirect City Expenses:
Recreation and Landscaping - No Dollars
Offsite - One Hundred Fifty and no/100 Dollars
Onsite - One Thousand Nine Hundred Sixty -Eight Dollars
Part E. Map Filing Fee:
Two Hundred Forty -Four and no/100 Dollars
Part F. Development Maintenance Deposit:
One Thousand Three Hundred Thirty and no/100 Dollars
Part G. Storm Drainage Fee:
Nine Thousand Nine Hundred Seventy -Nine and no/100 Dollars
Part H. One Year Power Cost:
One Hundred Thirty -Eight and no/100 Dollars
Part I. Tree Fees:
Part J. Park Fees:
One Hundred Thirty -Four Thousand One Hundred Ninety Dollars
Park K. Water ?Iain Extension Deposit:
$ 0.00
$ 1,000.00
$ 13,120.00
$ 0.00
$ 150.00
$ 1,968.00
$ 244.00
$ 1,330.00
$ 9,979.00
$ 138.00
$ BY DEVELOPER
$ 134,190.00
$ NIA
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
dedication,
(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.
(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-
S. 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 AGREEMEiT, 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.
WE
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. ,
r
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
WM
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
harmless and defend the CITY from and against any or all loss, cost, expense, damage
or liability, or claim thereof, occasioned by or in any way whatsoever arising out of
the performance or.nonperformance of the Work or the negligence or 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
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 primax7 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 b.77 said policy or policies, that other insurance stall be _ccess insur-'nce
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 Engine4r, 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
a
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.
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.
OFFICIAL SEAL
�t
STANLEY L. ilOi ARD
NOTARY PUBLIC CALIFORNIA
SANTA CLARA COUNTY
My COMMISSION EXPIRES OCTOSES 18. 1984
STATE OF CALIFORNIA,
ss.
_ounty of Santa Clara -----------
C _ •--- ----
December- December -- .-..-
_.in -
On this_.QCQ17lC� -- _ --.day of.... ---_.._........in the year one thousand nine
hundred and... e i hty _ ___ _•.-bef ore me_. tanl ey i.* _ Howard _ _ _ - - - - _ _ _
a Notary Public, State of California, duly commissioned and sworn, personally appeared
JASON CHARTIER and MARTIN HALL II-------------------------
Cowdery's Form No. 29—(Acknowledgment—Partnership)
(C. C. Sec. 1189)
Approved as to form:
4i,.t Attorney
known to me to beSi� the partners of the partnership that executed the within instrument,
and acknowledged to me that such partnership executed the same.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my official seal,
int
y f Santa Clara- - - _ - - - - = the day and year in this
—Count o .-.................................•---
certificate first above written.
Notary Public, State of California.
My Commission Expires .._.....October 18, 1984
- 10 -
By
By
51
DEVELOPER:
rtner-
Shil
' RESOLUTION NO. 5520
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
APPROVING THE FINAL MAP AND IMPROVEMENT PLANS OF TRACT
NO. 7039, PARK PLAZA, LOCATED AT THE SOUTHWEST CORNER OF
PORTAL AVENUE AND STEVENS CREEK BOULEVARD; DEVELOPER, C &
H PARTNERSHIP, A GENERAL PARTNERSHIP, BY JASON CHARTIER,
PARTNER, AND MARTIN HALL II, PARTNER; 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. 7039, Park Plaza,
located at the southwest corner of Portal,Avenue and Stevens Creek Boulevard
showing certain avenues, drives, places, and roads by C & H Partnership, a
general partnership, by Jason Chartier, partner, and Martin Hall II, partner;
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 improve-
ments, 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, THEREFORE, BE IT RESOLVED THAT
a. Said final map and improvement plans of Tract No. 7039, Park Plaza,
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 5th day of January , 1981 by the following vote:
Vote Members of the City Council
AYES: Gatto, Johnson, Plungy, Sparks, Rogers
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST:
/s/ Dorothy Cornelius
City Clerk
Resolution No. 5520
APPROVED:
/s/ Barbara A. Rogers
Mayor, City of Cupertino
- 2 -
AL
Resolution No. 5520
EXHIBIT "A"
SCHEDULE OF BOND, FEES, AND DEPOSITS
DEVELOPMENT: Tract No. 7039, Park Plaza
C & H Partnership, et al.
LOCATION: Southwest corner of Portal Avenue and Stevens Creek Boulevard.
Part A. Faithful Performance Bond:
Recreation and Landscaping - One Hundred Eighty -Eight Thousand Dollars$188,000
Offsite - Twenty -Five Thousand and no/100 Dollars $ 25,000
Onsite - Three Hundred Twenty -Eight Thousand Dollars $328,000
Part B. Labor and Material Bond:.
Recreation and Landscaping - One Hundred Eighty -Eight Thousand Dollars$188,000
Offsite = Twenty -Five Thousand and no/100 Dollars $ 25,000
Onsite - Three Hundred Twenty -Eight Thousand Dollars $328,000
Park C. Checking and Inspection Fee:
Recreation and Landscaping - No Dollars $ 0
Offsite - One Thousand and no/100 Dollars $ 1,000
Onsite - Thirteen Thousand One Hundred Twenty Dollars $ 13,120
Part D. Indirect City Expenses:
Recreation and Landscaping - No Dollars $ 0
Offsite - One Hundred Fifty and no/100 Dollars $ 150
Onsite - One Thousand Nine Hundred Sixty -Eight Dollars $ 1,968
Part E. Map Filing Fee:
Two Hundred Forty -Four and no/100 Dollars $ 244
Part F. Development Maintenance Deposit:
One Thousand Three Hundred Thirty and no/100 Dollars $ 1,330
Part G. Storm Drainage Fee:
. Nine Thousand Nine Hundred Seventy -Nine and no/100 Dollars $ 9,979
Part H. One Year Power Cost:
One Hundred Thirty -Eight and no/100 Dollars $ 138
Part I. Tree Fees: $ BY DEVELOPER
Park J. Park Fees:
One Hundred Thirty -Four Thousand One Hundred Ninety Dollars $134,190
Park K. Water Main Extension Deposit: $ N/A
RE 'UfRN TO CITY
W!)F` CUPERTINO 2343
[10 300 TORRE AVF_
.,IPERTINO, OA 96014 PARTICIPATION AGREEMENT "O' FEE !N OORDANOIi
WITH 60V CO¥)E 6103
CITY OF CUPERTINO BELOW MARKET RATE HOUSING PROGRAM
F 867 577
This agreement made and entered into this I day of
1981, by and between the City of Cupertino, California (hereinafter "City"), and
_C_& H PARTNERSHIP, a general partnership ---------------------------------------
(hereinafter "developer"), witnesseth:
Whereas, developer is the owner and developer of that Parcel of real property
commonly known as Tract 7039 Park Plaza -------------------- - -- -- ---------- ------- ,
and Assessor's Parcel ;,Tumber 369-5-13 & 14 , Cunertino, California;
Uhereas, developer oroposes to develon a seventy-nine (79)unit, multiple
family, residential housing project (hereinafter "project") on above-described
nronerty•
Uhereas, on November 17, . , 1980, the City Council of the City of
Cupertino, by adoption of Tentative Map T -To• 19 -TM_ -80 ,
annroved the development of said nronerty in a manner consistent with the terms and
conditions herein contained, one of such conditions being developer's participation
in the Below Market Rate (B`Il?) Housing Program of the City of Cupertino, and
Whereas, it is the intention of both narties to set forth the covenant, conditions
and restrictions apnl.icahle to BIMR Program participation in this separate document.
Yow, therefore, in consideration of the foreeoinQ, and of the mutual terms and
covenants hereinafter set forth, the parties herebv agree that developer shall
participate in the above-described program, subject to the following terms and
conditions:
- 1 -
1. SATISFACTIONS OF CUTDITIONS. CITY hereby agrees that execution, recordation
and performance of this agreement shall constitute performance of those conditions of
sublivision approval for the PROJECT which relate to sale of units pursuant to the
CITY's BMR Program and the incorporation of related terms in the organizational documents
-for the PROJECT, and shall be suff_icient.in that respect to hermit recordation of the. "T1
final subdivision map, subject to City Council approval of said final man, satisfaction'1
of all other applicable conditions and compliance with all provisions of law.
`U
l�
f.�
2. SALE OF UNITS. Developers hereby agree that they shall offer units for .sa.le, CJ1
based upon the unit description, as shown below, to households)
qualified by the City or its designee pursuant to the City's Below Market Pate
Housing Program and the guidelines established thereunder. The sales price of the
units shall be established ninety (90) days nrior to the projected date of occupancy
according to the formula set in the City policy based on the median income levels
for Santa Clara Count., as published by the San Francisco Office of the U.S. Department
of Housing and Urban Development which will be in effect on the projected date of
Cerificate of Occupancy. Developer further agrees to insert in any deed or other
conveyance of any of said units those certain terms, conditions and restrictions
attached hereto as "EXHIBIT A" and incorporated herein by this reference.
Tract Number Lot Number Unit Type, No. Bedrooms
7039 2,5,40,43,67,69,72 & 74 +-1189 Square Feet (Each)
2 bedrooms (Each)
3. OPINION OF COUNSEL. Concurrent with the execution hereof, developer shall
provide to City a letter of opinion from its legal counsel stating that in the opinion
of counsel this agreement constitutes a valid and binding contract upon developer and
that the inclusion of the terms hereof in this agreement rather than in the Declaration
of Covenants, Conditions and Restrictions for the project does not impair developer's
legal ability to comely with said terms nor the enforceability of this agreement by City.
4. RECORDATION. Developer shall execute this agreement, cause the same
to be acknowledged and deliver said executed and acknowledged document to the
- 2 -
F 867,--.579
City in such form as to permit its recordation in the office of the County Recorder
of the County of Santa Clara, State of California. This agreement shall be recorded
at the same time as the final subdivision map for the Project is recorded. City
shall not be obligated to nermit recordation of the final subdivision map prior to
such delivery of this agreement.
5. LIMITED CONSTRUCTION. Nothing contained herein shall be deemed compliance
with or waiver of any provision of law or condition of subdivision approval except
as expressly stated herein with respect to conditions relating to BMR units.
6. AGREEMENT BINDING. The terms, covenants and conditions of this agreement
shall apply to, and shall bind, the heirs, successors, executors, administrators, assigns,
contractors, subcontractors and grantees of both parties and shall be covenants
running with the land.
7. WAIVERS. The waiver by any party of any breach or violation of any term,
covenant or condition of this agreement or of any provision, ordinance or law shall
not be deemed.to be a waiver of such term, covenant, condition, ordinance or law or
of any subsequent breach or violation of the same or of any other term, covenant,
condition, ordinance or law.
8. COSTS AND ATTORNEY'S FEES. The prevailing party in any action brought
to enforce the terms of this agreement or arising out of this agreement may recover
its reasonable costs and attorney's fees expended in connection with such an action
from the other party.
3 -
F GG 7 58®
IN WITNESS WHEREOF, CITY AND DEVELOPER have executed this agreement the day
and year first,.above written.
ATTEST: p
Approved:
qD'tor of Planning Denartment
Approved as to Form:
City/At orney
CITY OF CUPERTINO
1
P_
by
City ?Manager
C & H PARTNERSHIP, a general partnership
Developer
bv:
Position: Jason Chartier, Partner
STATE OF CALIFORNIA,
ss.
-----.-. _..County of- Santa Clara----- .....-_--- ---•---•
On this.... S eypnth ----day of_ J111UaY -_ _ =in the year one thousand nine
hundred and_.--2igYlty = _ _ _ _ =before me,. Stanley._..... Howard-_......................
a Notary Public, State of California, duly commissioned and sworn, personally appeared
Jason-Chartier- _ -----_ _ __-------_--_...--_ _-_-------- _----- _--_ _-_ = __ -
--------------.... -............. —------ ---- -..... - - -
known to me to be one of the partners of the partnership that executed the within instrument,
OFFICIAL SEAL and acknowledged to me that such partnership executed the same.
STANLEY L. HOWARE) IN WITNESS WHEREOF I have hereunto set my hand and affixed my official seal,
NOTARY PUBLIC CALIFORNIA to the ------------ .—.._-...._County of_._........Santa .........Clara-= - _ -_ __ .-_-_ _-.the day and year in this
SANTA CLARA COUNTY certificate first above written.
MY COMMISSION EXPIRES OCTOBER 18, 1994
Cowdery's Form No. 29—(Acknowledgment—Partnership)
(C. C. Sec. 1189)
Notary Public, State of California.
My Commission Expires.... October.... 1-8 t 1984
January 7, 1981
EXHIBIT A
TERMS AND COnITIONS r 867 x„`.581
Subiect to:
An option to purchase the'real property conveyed hereby and any improvements
thereon (hereafter "the Premises") under conditions herein later set forth, vested
in the City of Cupertino (hereinafter "City"). City may designate a governmental
or non-profit organization to exercise its option to purchase. City or its designee
may assign this option to an individual private buyer who meets the City's eligibility
qualifications. After the exercise of said option by City, its assignee or designee
may assign said right to purchase to any substitute individual private buyer who meets
the City's eligibility requirements and is approved by the City: provided, however,
that such subsequent assignment shall not extend any time limits contained herein.
In the case of the original transfer from the developer to the City, its
assignee or designee, the City, its assignee or designee shall have the right to
exercise its option to purchase said premises within thirty (.30) days after the
occurrence of the later of the following events:
1. The subject premises are ready for occupancy; or
2. Within 90 days from the date the developer notifies the City
that building permits have been issued to the developer for the
development of the subject premises.
The escrow shall be closed within ten (10) days of the exercising of the
option.
If the subject premises are not expected to be completed within ninety (90)
days from the date the developer notifies the City that said building permits have
been issuedy'the developer shall notify the City of the projected completion date at
— 51 —
F S, 67 582
least ninety (90) days prior to the Certificate of Occupancy of the subject premises.
All such notices shall be personally delivered or deposited in the United States
mail, postage prepaid, first class, certified, addressed to the City Manager, City of
Cupertino, 10300 Torre Avenue, Cupertino, California 95014.
In the case of the transfer from the original grantee to a qualified purchaser,
whenever the owner (including Grantee and all successors in interest) of said Premises
shall no longer desire to own said Premises, owner shall notify City in writing to
that effect. Such notice shall be personally delivered or deposited in the United
States mail, postage prepaid, first class, certified, addressed to City Manager, City
of Cunertino, 10300 Torre Avenue, Cupertino, Cali`ornia 95014. Citv, its assignee
or designee, shall then have the right to exercise its option to purchase said
Premises by delivery of written notice, by personal delivery or certified mail, to
the owner thereof at any time within sixty (60) days from the receipt by City of such
wr4.tten notice from owner of intent to sell or written notice of any other method or
mode of termination of ownership. As used hereinafter, "Grantee" shall refer to the
original grantee and all successors in interest.
If and in the event that City or its designee exercises its option to purchase
said Premises, close of escrow of said purchase shall be within sixty (60) days of the
opening of such escrow by either party, except in the case of the original transfer
from the developer to the City, its assignee or designee (see above). Such escrow
shall be opened upon delivery to owner of written notice of the exercise of the option
or as soon thereafter as possible. In the case of the original transfer from the developer
to the City, its assignee or designee, closing costs shall be paid in the same manner
for Below Market Pate units as for the market rate units in the development. In the
case of subsequent transfers, closing costs and title insurance shall be paid pursuant
to the custom and practice in the City of Cupertino, Santa Clara County, at the time of
the opening of such escrow. Any prepayment fees charged by seller's lender will be
- 6 -
F 867 583
. .paid by the buyer and that amount will be added to the buyer's base purchase price
to allow it to be recovered upon resale by the buyer.
The seller will be required to obtain and pay for a structural pest control
report and to pay for any necessary corrective work. The seller will not be obligated
to perform preventative, but not currently necessary, work; the buyer may perform
such work at his or her expense.
The purchase price shall be paid in cash at the close of escrow or as may be
otherwise provided by mutual agreement of buyer and seller.
The purchase price of the Premises shall. he fixed at the lowest amount arrived
at via the following methods:
1. In the case of the original transfer from developer to the City or
its assigned interest, the purchase price of the units shall be established
ninety (90) days prior to the projected date of occupancy according to the
formula set in the City policy based on the median income levels for Santa
Clara County as.published by the San Francisco Office of the U.S. Department
of Housing and Urban Development which will be in effect on the projected
Certificate of Occupancy.
2. In the case of all transfers other than the original transfer from the
developer to the City, its assignee or designee, the purchase price shall be
fixed at and is based upon:
a) The purchase price paid by the selling owner plus an amount, if any,
to compensate for any increase in the cost of living as measured by the
Consumer Price Index for the San Francisco -Oakland area published by the
U.S. Department of Labor, Bureau of Labor Statistics (herein "the Index").
For that purpose, the Index prevailing on the date of purchase by Grantor
- 7 -
F GG 7 Fie- -6584
of said premises shall be compared with that estimated to be prevailing
sixty days subsequent to receipt by City of notice of intent to sell.
The yearly compounded increase in the Index, if any, shall be
computed and the base price shall be increased in the -same percentage;
provided, however, that the price as determined under subparagraph 2(a)
shall in no event be lower than the purchase price paid the selling owner.
b) The adjusted purchase price, as determined by subparagraph 2(a), shall
be increased by the amount of any prepayment fees charged by the previous
owner's lender and paid by the current seller at the time the current
seller purchased said Premises.
c) The adjusted purchase price, as determined under subparagraph 2(a) and
2(b) shall be increased by the value of any substantial or structural or
permanent fixed improvements which cannot be removed without substantial
damage to the premises or substantial or total loss of value of said
improvements as hereinafter provided. No such adjustment shall be made
except for improvements made or installed by the selling owner. No
improvement shall be deemed substantial unless the actual initial costs
of the improvement to the owner exceeds one (1) percent of the purchase
price paid by the selling owner for the premises. Notwithstanding the
foregoing, improvements to the common areas of a condominium or Planned
Unit Development made by a mandatory assessment by the homeowner's
association will be considered the same as an improvement made directly
by the owner. The one (1) percent minimum expenditure requirement
will not apply to such assessments. In addition, replacement of
appliances, fixtures and equipment which were originally sold as part
of the unit will be deemed substantial improvements if the replace-
ment is required by the nonoperative or deteriorated nature of the
original appliance, fixture, or equipment. The replacement must be of
comparative value. The one (1) percent minimum expenditure requirement
will not apply to such replacements. No adjustment shall be made for the
value of any improvements unless the owner shall present to the City valid
written documentation of the cost of said improvements. The value of
such improvements and the amount by which the sales price shall be
adjusted shall be the appraised market value of the improvements when
considered as additions or fixtures to the premises (i.e., the amount by
which said improvements enhance the market value of the premises) at the
time of sale. City or its designee shall have an appraisal made by an
appraiser of its choice to establish the market value. The owner may also
have an appraisal made by an appraiser of owner's choice to establish
the market value. If agreement cannot be reached, the average of the two
appraisals shall be termed the market price.
In all sales, the sales price, fixed as designated above, shall be recorded
clearly as a part of the deed transferring ownership.
Upon resale, an inspection: of the Premises will be made by the Chief Building
Inspector of the City of Cupertino. Damage done to the premises as a result of the
selling owner's failure to adequately maintain the premises will be identified by said
Inspector and the cost to repair them will be estimated. The seller has the option,
exercisable prior to the close of escrow of either repairing the identified damaged
conditions and receiving the full sale price as established above or having the cost
to repair the identified damaged conditions deducted from the proceeds of the sale.
Those funds would remain in escrow and guarantee that the repairs be made.
In no event shall City become in any way liable to Grantee, nor become obligated
in any manner, by reason of the assignment of its option to purchase, nor shall City
be in any way obligated or liable to Grantee for any failure of City's assignee
X6 7 P, 566
to consummate a purchase of the Premises or to comply with the terms of any sale
agreement.
Until such time as the City's option to nurchase is exercised, waived or
expires, said Premises and any interest in title thereto shall not be sold, leased,
rented, assigned or otherwise transferred to any person or entity except with the
express written consent of the City or its designee, which consent shall be consistent
with the City's goal of creating, preserving, maintaining, and protecting housing in
Cupertino for persons of low and moderate income.
In the event that City abandons or fails to exercise its option to Purchase
said Premises within sixty .(60) days after it receives the notice of intent to sell,
City will cause to be recorded in Santa Clara County a notice of intent not to exercise
its option with respect to said Premises, and declaring that the provisions of this option
are no longer applicable to said Premises, and shall deliver a copy thereof to owner
of said Premises. Said notice shall be recorded within fifteen (15) days of City's
decision not to exercise its option, but no later than sixty (60) days after City
receives the notice of intent to sell. Upon recordation of said notice, the provisions
of this option shall no longer be applicable to said Premises.
The following transfers of title or any interest therein are not subject to the
option provisons of this deed; Transfers by gift, devise or inheritance to grantee's
spouse or issue; transfers of title to shouse as part of divorce or dissolution
proceedings; acquisition of title or interest therein in conjunction with marriage;
provided, however, that these covenants shall continue to run with the title to said
Premises following said transfers.
The provisions set forth in this deed relating to City's option to purchase shall
terminate and become void automatically fifty (50) years following the date of recordation
of this deed unless extended in writing for one additional fifty (50) year period at the
10 -
F 867 PiQ--6 567
option of the City and the same shall constitute covenants which shall run with the
land and be binding upon grantee(s) and successors and assignee, and all parties
having or acquiring any right, title or interest in or to any part of the property.
Any attempt to transfer title or any interest therein in violation of these covenants
shall be void.
Grantee covenants to cause to be filed for record in the Office of the Recorder
of the County of Santa Clara a request for a copy of any notice of default and of any
notice of sale under any deed of trust or mortgage with power of sale encumbering said
Unit pursuant to Section 2924(b) of the Civil Code of the State of California. Such
request shall specify that any such notice shall be mailed to the City Manager, City of
Cupertino, 10300 Torre Avenue, Cupertino, California, 95014. In the event grantee
fails to give such notice to City, all surplus to which grantee may be entitled
pursuant to Section 727 of the Code of Civil Procedure of the State of California
shall be paid to City. If grantee gives oroper notice, any surplus to which grantee
may be entitled pursuant to Code of Civil Procedure Section 727 shall be paid as
follows: That portion of surplus (after payment of encumbrances ), if any, up to,
but not to exceed, the net amount that grantee would have received after payment of
encumbrances under the formula set forth above had City exercised its option to
purchase the property on the date of the foreclosure sale, shall be paid to grantee
on the date of the foreclosure sale: the balance of surplus, if any, shall be paid
to the City.
In the event that the Unit is destroyed and insurance proceeds are distributed
to grantee instead of being used to rebuild, or in the event of condemnation, if
proceeds thereof are distributed to grantee, or in the event of termination of the
condominium, liquidation of the association and distribution of the assets of the
association to the members thereof, including grantee, any surplus of proceeds so
distributed remaining after payment of encumbrances on said Unit shall be distributed
as follows: That portion of the surplus up to but not to exceed the net amount that
grantee would have received under the formula set forth above had City exercised its
option to purchase the property on the date of the destruction, condemnation
evaluation date, or liquidation, shall be distributed to grantee, and the balance of
such surplus, if any, shall be distributed to the City.
All notices required herein shall be sent to the following addresses:
City:
City Manager
Declarant
Purchaser
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
BY ACCEPTANCE of this deed, grantee accepts and agrees to be bound by the covenants
contained herein.
- 12- -
yyI
REC. FEE 0 7216447
MICRO FILED F'UH
AT REQUEST OF.
C�, X501 <E LIEN NOT 459''"C: 638
ei; a
SMPF Nov 18 9 3o AM 181
RESOLUTION NO. 5738 'OFFIGIAL. Rr__( tORD5
SANTA CLARA Ca�1 Y
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPEIGE A 1rEAF�pd:
AUTHORIZING EXECUTION OF PARTIAL RELEASE OF PART ICI pA�_Wi7RAR.RFCOLE,0
AGREEMENT CITY OF CUPERTINO BELOW MARKET RATE HOUSING
PROGRAM, TRACT 7039, PARK PLAZA
WHEREAS, there has been presented to the City Council a Partial Release
,of "Participation Agreement City of Cupertino Below Market Rate Housing
.Program" for Tract 7039,'Park Plaza, and the terms and conditions of said
release having been approved by the Director of Planning and Development
and the City Attorney;
NOW, THEREFORE, BE IT RESOLVED that the Mayor and the City Clerk are
hereby authorized to execute said release in behalf of the City of Cuper-
tino.
PASSED AND ADOPTED at a regular meeting of the City Council of the
City of Cupertino this 20th day of October , 1981 by the following vote:
Vote Members of the City Council
AYES: Johnson, Plungy, Rogers, Sparks
NOES: None
ABSENT: Gatto
ABSTAIN: None
ATTEST:
/s/ Dorothy Cornelius
City Clerk
APPROVED:
/s/ Reed Sparks
Mayor, City of Cupertino
THIS IS TO C4NTfY -t";-,: ; n� 141T IN
INSTRUMENT IS A.TRUC-AND C❑RFZE- -C❑PY
❑F THE ❑RIGIN'�kO N ;FIL IN TH15-QFFICE.
ATTEST ,[(L/
CITY O .'T.HE CITY PEI7TIN❑
8 Y _ �J � ' 1
Recorded at the request of:
City of Cupertino
When recorded, please return to:
City of Cupertino
10300 Torre Avenue
Cupertino, California 95014
No fee in accordance with
Government Code 6103
PARTIAL RELEASE OF
"PARTICIPATION AGREEMENT
.,, .�
G 454 639
CITY OF CUPERTINO BELOW MARKET RATE HOUSING PROGRAM"
WHEREAS, that certain document entitled "Participation Agreement - City of
Cupertino Below Market Rate Housing Program" was filed for record on January 23,
1981 under Series Number 6962324 in Book F-867 of Official Records, at Page 577, et
seq., Santa Clara County Records, State of California, affecting Lots 2, 5, 40, 43, 67,
69, 72 and 74 in the seventy-nine (79) unit, multiple family, residential housing project
commonly known as Tract 7039, Park Plaza and Assessor's Parcel Number
369-5-13 & 14, Cupertino, California, and being more particularly described as follows:
"LOTS 2, 5, 40, 43, 67, 69, 72 and 74, as shown on that certain Map
entitled 'Tract 7039, Park Plaza', which said Map was filed for record on
January 9, 1981 in Book 478 of Maps, at Pages 24, 25, 26 and 27, Santa
Clara County Records, State of California"; and,
WHEREAS, on September 8, 1981 the City of Cupertino City Council approved the
modification of the Below Market Rate (BMR) Housing Program as it affects said
"Tract 7039, Park Plaza" by reducing the developer's required participation therein by
fifty percent (50%) and designating Lots 2, 5, 40 and 43 above referred to as sufficient
to comply with said City's BMR Housing Program requirements:
NOW THEREFORE, the undersigned hereby declare that the above referred to
"Participation Agreement - City of Cupertino Below Market Rate Housing Program" is
rescinded and of no further force and effect whatsoever with regard to the above
referred to Lots 67, 69, 72 and 74 in said "Tract 7039, Park Plaza".
All other provisions, terms and conditions of said "Participation Agreement - City of
Cupertino Below Market Housing Program" above referred to are to remain in full
force and effect with regard to the above referred to Lots 2, 5, 40 and 43 in said
"Tract 7039, Park Plaza".
IN WITNESS WHEREOF, the undersigned have hereunto set their hands on the dates
set forth hereafter.
Date:
CIWOFERTINO
By:
V
MAYOR, CITY OF UP RTINO
COMBINED_ SALE_ AND _PURCHASE _AGREEMENT _ AND ESCROW_ INSTRUCTIONS
Escrow No. C-3599
_July_311_1984_, 1984
To: Valley Title Company
10625 South De Anza Boulevard
Cupertino, California 95014
Attention: Doris Adamo, Assistant Vice -President Manager
Gentlemen:
1. Recital. James Devin Ivester and Lois Lynne
Ivester, Husband and Wife ("Sellers" herein), are the owners of
that certain real property (the "Property" herein), located in
the City of Cupertino, County of Santa Clara, State of
California, more particularly described in Exhibit "A" attached
hereto and incorporated herein by this reference. When this
document or counterparts hereof (this "Agreement") shall be
executed by Seller and the City of Cupertino by and through its
duly authorized representatives ("Buyer" herein) and delivered to
you, it shall constitute your Escrow instructions and shall also
constitute a binding agreement between the parties relating to
the sale and purchase of the Property by Seller to Buyer.
Authority_to_Deliv_er_Documents and Fundson Behalf
of --Buyer. Concurrently herewith, Buyer is delivering to you the
sum of One Thousand and No/100 Dollars ($1,000.00) (the "Escrow
Deposit" herein). Buyer will, at least two business days prior
to the closing date (as hereinafter defined in Paragraph 10),
deliver to you the funds constituting the balance of the Purchase
Price, as more particularly set forth in Paragraph 3 below,
together with all other funds and documents necessary on the part
-1-
of Buyer to enable you to comply with this Agreement. You are
authorized to deliver such funds on account of the Purchase Price
on the Closing Date, provided:
You can issue your standard form CLTA Joint
Protection Policy of Title Insurance, with liability in the
amount of the Purchase Price, insuring title to the property
vested in Buyer (the "Title Policy") subject only to:
(a) General and special taxes and assessments
not then delinquent% and
(b) Those matters, conditions, and exceptions
set forth in your Preliminary Title Report.
3. Funds- _and Documents _ to_be_DepgnitedinEscrow by
BuYer. The purchase price of the Property is Seventy Seven
Thousand Forty Six and No/100 Dollars ($77,046.00) (the "Purchase
Price") and shall be paid to Seller through escrow at the close
of escrow as follows:
Seventy Seven Thousand Forty Sir, and No/100 Dollars
($77,046.00) by cashier's or certified check, including the
Escrow Deposit, less charges to Seller's account as provided
herein.
-2-
4. Documents _to__be__DepositedinEscrow _by_Seller_and
Authority_to_Deliv_er_ Documents _on_Behalf _o_f_Seller. At least two
business days prior to the Closing Date (as hereinafter defined
in Paragraph 9), Seller will deliver to you the Grant Deed and
other documents required to be executed by Seller in order to
enable you to comply with this Agreement. You are authorized to
record such Grant Deed when you hold the monies called for herein
to be held for Seller, and each of the other conditions as set
forth in Paragraphs 2 and 5 hereof have been satisfied.
5. Existing_Encumbrance_and_Authoritto__Deliv_er_Funds
onBehalf of__Selleri_to_Charge_Seller's_Accounti_and_to__Effect
Reconveyance. The Property is subject to the existing
encumbrance of a Deed of Trust dated January 21, 1982, recorded
January 26, 1982, in Book 6-570, Page 659, of Official Records,
Santa Clara County, California, executed by James Devin Ivester
and Lois Lynne Ivester, Husband and Wife, as joint tenants, as
Trustors, to Hermes Financial Corporation, a California
corporation, as Trustee, and Mercury Savings, as Beneficiary, to
secure payment of an original balance of $68,000. You are
authorized to pay to Mercury Savings, and to charge to Seller's
account, the remaining unpaid principal balance due on said note
together with prepayment charge due thereon, if any, and interest
due thereon from date of the last installment paid by Seller to
the close of escrow, when you have received the following:
-3-
(a) Cancellation and return of the Promissory
Note given to Mercury Savings;
.(b) The original Deed of Trust securing said
note; and
(c) Reconveyance of Deed of Trust securing
said note.
You are also authorized to pay, and to charge to
Seller's account, the following:
(a) Fees for recording reconveyance of this
existing Deed of Trust;
(b) Any reconveyance charged by you as
Trustee under this existing Deed of Trust.
Instruct the Recorder to send the recorded
reconveyance to Seller and send the cancelled note given to
Mercury Savings to Seller.
b. Proration__of-_Taxes__and_-Assessments. You are
instructed to prorate as of close of escrow on the basis of a
30 -day month:
(a) Real property tares based on the most
recent official information (1) applicable to the fiscal year in
which the proration date occurs, and (2) obtainable in the office
of the particular taxing authority;
(h) Assessments with no delinquent payments;
pay delinquencies out of Seller' s funds-
-4-
7. Fixtures_ and Personal_Proeerty. The purchase price
includes all fixtures attached to the Property, including but not
limited to the following, if applicable: Plumbing, heating,
lighting, air-conditioning, tacked -down carpeting, built-in
applicances, television antennas, garage door opener and
controls, outdoor plants and trees and shrubs planted in the
ground. Seller warrants that on the date possession of the
Property is delivered to Buyer all fixtures attached to the
Property and all personal property described herein shall be in
good repair and normal working order and free of all liens and
encumbrances except as shown in such preliminary title report or
otherwise disclosed in an addendum attached hereto. Excluded
items are all window coverings, microwave oven, washer and dryer,
refrigerator.
8. Acceetance__ofPest Control__Reg_ort. Buyer accepts
the existing standard structural Pest Control Report as prepared
by Sears dated April 25, 1984 and June 22, 1984. Buyer has read,
understands and acknowledges said report. Seller agrees to
deposit an amount of $500.00 which is to be held in escrow to
perform work as outlined in the Pest Control Report. If the
payment for said work becomes the responsibility of someone other
than the property owner at the time the work is performed, said
$500 shall be returned to the seller.
-5-
9. Escrow Costs. Buyer shall pay your customary
charges to buyers for document drafting, recording, and
miscellaneous charges, and $150 of your escrow fee. Seller shall
pay your customary charges to sellers for document drafting,
recording, and miscellaneous charges, including documentary
stamps, the cost of the Title Policy, and the remainder of your
escrow fee.
10. Closing Date. As used herein, the following terms
shall have the following meanings:
(a) "Close of Escrow" or "Closing" means the
date on which the Grant Deed conveying title to the Property to
Buyer is recorded.
(b) "Closing Date" means on or before
August 3, 1984.
11. Termination. Time is of the essence of this
Agreement. If this Escrow is not in a condition to close on the
Closing Date, any party who has not been in default may, by
notice to you and the other party, terminate this Escrow and
demand return of its money and/or documents; but if neither party
hereto has complied with all of the terms hereof, no demand for
return shall be recognised until five (5) days after you shall
have mailed copies of such demand to the other party at the
address shown in this Agreement. If no such demand is made,
close this Escrow as soon as possible.
12. Further Escrow Instructions. At least two business
-----------------------------
days prior to the Closing Date, Seller and Buyer will deposit in
escrow such further escrow instructions as will be sufficient to
enable you to perform the functions herein contemplated and
consistent with the provisions of this Agreement.
-6-
13. Notices. No notice, request, demand, instruction or
other document to be given hereunder to any party shall be
effective for any purpose unless personally delivered to the
person at the appropriate address set forth below (in which event
such notice shall be deemed effective only upon such delivery) or
when delivered by mail, sent by registered or certified mail,
return receipt requested, as follows:
If to Seller to: James Devin Ivester and
Lois Lynne Ivester
1560 Den Roe Avenue
Los Altos, California 94022
If to Buyer to: City of Cupertino
P.O. Box 580
Cupertino, California 95015
A copy of any notice given prior to the Close of
Escrow also shall be given to you at the address set forth on
Page 1 hereof and shall refer to your Escrow No. as set forth on
Page 1 hereof.
Notices so mailed shall be deemed to have been given
forty-eight (48) hours after the deposit of same in any United
States Post Office mailbox in the State to which the notice is
addressed, or seventy-two (72) hours after deposit in any such
Post office box other than in the State to which the notice is
addressed, postage prepaid, addressed as set forth above. Notice
shall not be deemed given unless and until, under the preceding
sentence, notice shall be deemed given to all addressees to whom
notice must be sent. The addresses and addressees, for the
Purpose of this paragraph, may be changed by given written notice
of such change in the manner herein provided for giving notice.
-7-
Unless and until such written notice is received, the last
address and addressee stated by written notice, or provided
herein if no written notice of change has been sent or received,
shall be deemed to continue in effect for all purposes hereunder.
MATTERS OF AGREEMENT
As matters of agreement between Buyer and Seller
with which you need not be concerned, except as specifically
provided in the foregoing instruction, Buyer and Seller in
addition to those matters set forth above, agree as follows:
14. Commissions. Seller represents and warrants to
Buyer and Buyer represents and warrants to Seller that no broker,
salesman, or finder has been engaged by it, respectively, in
connection with the transaction contemplated by this Agreement,
or to its knowledge is in any way connected with this
transaction. In the event of any claim for any broker's or
finder's fee or commission in connection with the negotiation,
execution or consummation of this Agreement, Buyer shall
indemnify, save harmless and defend Seller from and against any
such claim if it shall be based upon any statement,
representation or agreement shown to have been made by Buyer and
Seller shall indemnify, save harmless and defend Buyer from and
against any such claim if it shall be based upon any statement,
representation or agreement shown to have been made by Seller.
15. Possession. Buyer shall be entitled to possession
of the Property on the Close of Escrow.
16. No -Warranties. Except as expressly set forth in
Paragraph 7 above,_ Buyer agrees and acknowledges that neither
Seller nor anyone on Seller's behalf has made any representation
or warranty respecting the Property, or otherwise in connection
with the transaction comtemplated hereby. Without limiting the
generality of the foregoing, Buyer hereby acknowledges that it
will be purchasing the Property in an "as is" condition and
further that:
(a) Buyer has made Buyer's own independent
investigation respecting the Property and all other aspects of
this transaction, and is relying entirely thereon.
(b) Buyer has reviewed all instruments,
records and documents which Buyer deemed appropriate or advisable
to review in connection with this transaction, and Buyer has
determined that the information and data contained therein or
evidenced thereby is satisfactory to Buyer.
17. Miscellaneous_ Provisions_
(a) Time. It is agreed that time is of the
essence of this Agreement.
(b) Attorneys' --Fees. If legal action is
commenced to enforce or to declare the effect of any provision of
this Agreement, the Court as part of its judgment shall award
reasonable attorneys' fees and costs to the prevailing party.
(c) No -Waiver. The waiver by one party of
the performance of any covenant, conditions, or promise shall not
invalidate this Agreement nor shall it be considered to be a
CUM
waiver by such party of any other covenant, condition, or promise
hereunder. The waiver by either or both parties of the time for
performing any act shall not constitute a waiver of the time for
performing any other act or an identical act required to be
performed at a later time. The exercise of any remedy provided
by law and the provisions of this Agreement for any remedy shall
not exclude other remedies unless they are expressly excluded.
(d; Construction. As used in this Agreement,
the masculine, feminine or neuter gender and the singular or
plural numbers shall each be deemed to include the other whenever
the context so indicates. This Agreement shall be construed as a
whole and in accordance with its fair meaning, the captions being
for the convenience of the parties only and not intended to
describe or define the provisions in the portions of the
Agreement to which they pertain.
(e) Entire____ Agreement. This Agreement
contains the entire agreement between the parties respecting the
matters herein set forth and supersedes all prior agreements
between the parties hereto respecting such matters. This
Agreement may be executed in any number of counterparts which
together shall constitute the contract of the parties.
(f) Survival. Each of the agreements,'
warranties, and representations contained herein shall survive
the closing and the recording of the grant deed conveying the
Property to Buyer.
(9) Successors-_and_Assigns. This Agreement
shall inure to the benefit of and be binding upon the successors
and assigns of the parties hereto.
-10-
(h) Comeutation_of_Periods. All periods of
time referred to in this Agreement shall include all Saturdays,
Sundays and State or national holidays, unless the period of time
specifies business drys, provided that if the date or last date
to perform any act or give any notice with respect to this
Agreement shall fall on a Saturday, Sunday or State or national
holiday, such act or notice may be timely performed or given on
the next succeeding day which is not a Saturday, Sunday or State
or national holiday.
Seller has executed this Sale and Purchase Agreement
and escrow Instructions this _.�1 t__
day of
---i"---
_ �'_)�/ ____, 1984.
James DevindIvesier and Lois Lynne Ivester
Husband and Wife
Buyer has executed this Sale and Purchase Agreement and
Escrow Instructions this 3 1__ day of , 1984.
Approved as to form:
City At orn
CITY OF CUPERT I IVO
By ---- -------- --u,
-�--�
Its City -Manager_________
ATTEST:
Cit Clerk
-12-
"EXHIBIT
All
LEGAL DESCRIPTION
All that certain real property situate in the City of Cupertino,
County of Santa Clara, State of California, as described as
follows:
Lot 43, as shown on that certain Map entitled, "Tract No. 703931
Park Plaza", which said Map was filed for record on
January 9, 1981 in' Book 478, of Maps, at Pages 24 through 27,
Santa Clara County Records.
EXCEPTING THEREFROM the underground water rights as quit -claimed
in the Deed to California Water Service Company, a California
Corporation, recorded January 10, 1981 in Book F 857, Pages 732,
Santa Clara County Records.
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6.50,
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PORTAL (60' WIDE)
46Z88, AVENUE
~ — N 0.09 58 56soo' m -m
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3� 11° !�s.� TRACT'�=4m -91T- 3Q
PORTAL AVE.
Y
ALL BEARINGS ARE PARALLEL
—
OR PEFU'ENDKXLAR TO
CREEK BOULEVARD (N 89* Q
LOT 8 P U.E.
LINT SS OTHERWISE ro1CATED.
O COMMON AREA
OF BEARINGS:
THE BEARING S89 -36-w OF THE CENTERLINE
>
OF STEVENS CREEK BW-E'ARD AS SKNN
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to
4s 4•
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AT PAGE t5 WAS TAKEN AS THE BASIS OF
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SEE SHT 3 OF 4
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36133
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COM N AREA
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6.50,
31
.15 � 14 I 13
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PORTAL (60' WIDE)
46Z88, AVENUE
~ — N 0.09 58 56soo' m -m
r—
1 'o /_z tf- t I
3� 11° !�s.� TRACT'�=4m -91T- 3Q
PORTAL AVE.
Y
ALL BEARINGS ARE PARALLEL
W
�j
OR PEFU'ENDKXLAR TO
CREEK BOULEVARD (N 89* Q
L:: ---
LINT SS OTHERWISE ro1CATED.
NLASIS
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OF BEARINGS:
THE BEARING S89 -36-w OF THE CENTERLINE
>
OF STEVENS CREEK BW-E'ARD AS SKNN
H
ON THE'RECORD OF SURVEY OF THE LAAOS
N
OF PAGANINI ._ FLED N BOOK 211 OF MAPS
04
AT PAGE t5 WAS TAKEN AS THE BASIS OF
• AL
BEARINGS FOR THS MAP.
/`7a,o -476 P&it: 26
J€mp
P.UE.
PUN -PC UTILITY EASEMENT
SSE.
SANTARY SEWER EASEMENT
S WX-
SIDEWALK EASEMENT
( )
RECORD WHERE DIFFERENT THAN MEASURED
•
FOUND STANDARD CITY MONUMEP4T
BOLI DARY
04
FOUND POINT AS I,DICATED
• AL
SET PONT AS IDICATED
MOtA.4AENT Ltt�E
PRNATE STREET ( PORTAL PLAZA) B"CARY
PARK PLAZA
CITY OF CUPERTiNO,COUNTY OFSANTA CLARA,
CALIFORNIA
PORTION CF THELA D60FPAG4NN AS SHOWN ON THAT CERTAIN MAP ENTITLED
'RECORD OF SURVEY LAND OF PAGANIN' RECORDED N BOOK 211 OF MAPS ePG m
SCALE -1'• 20' OCTOBER,1980
TRI STATE ENGiNEERffVG CO.
555 PRICE AVE,SUITE 586
REDWOOD CITY, CAL i FORK I A 94063
A 203- M
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