20-087 Installation Agreement, APN 316-20-120, 316-20-121 RECORDING REQUESTED BY: 24551158
City of Cupertino Regina A 1 comendras
Santa Clara County - Clerk-Recorder
07/23/2020 11:38 AM
WHEN RECORDED, MAIL TO:
Titles: 1 Pages: 22
Fees: $0.00
City, Clerk's Office Taxes: $0
`y Total: $0.00}
City of Cupertino 1III'i0�01111 �11,NiltAIJ1��I�M10 V��I�I�IN71Y'LiJIY�I� L4�I��III
10300 Torre Avenue
Cupertino, CA 95014-3255
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
NO FEE IN ACCORDANCE
WITH GOV. CODE 27383
INSTALLATION AGREEMENT
APN's 316-20-120 & 316-20-121
i Original
0 Conformed Copy
City of Cupertino
INSTALLATION AGREEMENT
APN's: (316-20-120 & 316-20-121)
This INSTALLATION AGREEMENT ("Agreement") for street improvements is made and
entered into this day of -C-A-00C., , 2020, by and between the CITY OF
CUPERTINO, a municipal corporation of the State of California, ("City"), and VALLCO PROPERTY
OWNER, LLC, a Delaware limited liability company ("Developer") for a mixed-use development
project located on the former Vallco Mall property at northeast corner of N. Wolfe Road and
Vallco Parkway and northwest corner of N. Wolfe Road and Stevens Creek Boulevard,
Cupertino, CA.
RECITALS
1. Developer has legal interest in certain real property consisting of approximately 50.8
acres located within the City and generally located at northeast corner of N. Wolfe Road and
Vallco Parkway and northwest corner of N. Wolfe Road and Stevens Creek Boulevard, Cupertino
CA (APNs 316-20-120 & 316-20-121) (the "Property").
2. Developer submitted an application on March 27, 2018 pursuant to Government Code
Section 65913.4 (the "SB 35 Application") for development of the Vallco Town Center Project
("Development Project"), which was approved by the City on September 21, 2018.
3. Developer has prepared and City has approved plans and related specifications for
construction, installation and completion of a portion of the Improvements necessary to
complete the Development Project (the "Make Ready Improvement Plans"). The Make Ready
Improvement Plans titled "Vallco Town Center, Make Ready Utility Package, Cupertino, CA",
prepared by Sandis Civil Engineering and dated June 2020, are hereby incorporated into this
Agreement by reference. Additional work within the public right of way will need to be
performed prior to completion of the Development Project. Said additional work will require
that additional improvement plans be submitted to the City for review and approval. Prior to
the City issuing permits for additional work, the Developer and City shall enter into subsequent
Installation Agreement(s) and/or Subdivision Improvement Agreements for the additional work.
4. Developer desires to enter into this Agreement promising to install and complete, at
Developer's sole expense, all public improvement work shown in the Make Ready Improvement
Plans for the proposed development (the "Improvements").
NOW, THEREFORE, in consideration of the respective promises herein, City and
Developer agree as follows:
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1. DEVELOPER'S OBLIGATION TO INSTALL IMPROVEMENTS
1.1 Completion of Improvements. Developer, at its own expense, shall furnish,
install, and construct the Improvements in substantial conformance with the Make Ready
Improvement Plans as approved by the City Engineer of Cupertino in a good and workmanlike
manner and in accordance with existing applicable ordinances and resolutions of the City and
other applicable laws. 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.
1.2 Compliance with applicable laws and rules. Developer shall complete, or cause
its contractors and subcontractors to complete, the work in accordance with: (i)the most
current City of Cupertino Standard Details and Specifications, where applicable; (ii) the
Standard Specifications of the California Department of Transportation, State of California,
where applicable; (iii)the Standard Specifications of the Cupertino Sanitary District, where
applicable; and (iv) all applicable State, Federal and local laws, rules and regulations, including
applicable Labor Code requirements. Wherever the words "State" or "California Division of
Highways" are mentioned in the State Specifications, it shall be considered as referring to the
City of Cupertino; also wherever the "Director" or "Director of Public Works" is mentioned, it
shall be considered as referring to the City Engineer. 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 control; provided,
however, Improvements within the City that are under the jurisdiction of Caltrans shall comply
with the Caltrans standards. Developer shall acquire all necessary permits, including an
encroachment permit from the City of Cupertino Public Works Department, prior to beginning
work in the public right of way. City acknowledges that Government Code section
65913.4(f)(2)requires it to process permits for the Development Project without unreasonable
delay and provides that it shall not impose any procedure or requirement that is not imposed
on projects that are not approved pursuant to SB 35.
1.3 Repair and replacement of damaged public facilities. Developer 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. Developer shall promptly notify the City Engineer of such damage and
shall obtain the City Engineer's approval for all repair and replacement work.
1.4 Developer's responsibility until City's acceptance. Until City accepts the
Improvements, Developer 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 Developer's obligation to repair such defects
as provided in Section 8 of this Agreement.
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2. TIME FOR INSTALLATION OF IMPROVEMENTS
2.1 Required time of completion of Improvements. Developer shall install and
complete the Improvements by not later than within one (1) year from the effective date of
this Agreement or the date of issuance of any permits required for implementation of the
Improvements, whichever occurs later, or within such longer period as may be specifically
authorized in writing by the City Engineer pursuant to Section 2.2 of this Agreement.
Installation, completion, and acceptance of the Improvements by the City are permitted to
occur prior to the City's approval of the final subdivision map or issuance of any building
permits or other permits required for development of the Development Project. In the event
the Developer fails or refuses to complete the work within the specified period of time,the
City, at its sole option,-(after complying with the notice requirements set forth in Section 17
and expiration of applicable cure periods, except in the event of an immediate threat to public
health and safety in which case only telephonic notice shall be required), shall be authorized to
draw upon the security provided pursuant to Section 6 and use such funds to complete the
work in whatever manner the City shall decide. 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.
2.2 Time extensions. The City Engineer, in his or her reasonable 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 Developer. Good
cause may include, but is not limited to, delay resulting from acts of God, strikes, boycotts,
judicial decisions and pending litigation resulting in injunction(s), third-party permitting agency
delays in issuing permits for the work of Improvements, or similar 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 an appropriate time period requiring Developer 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.
3. OFFERS AND ACCEPTANCE OF EASEMENTS OR RIGHTS OF WAY
3.1 By separate recordable instrument, Developer shall irrevocably offer to the City
the following easements, depicted in Exhibit B ("the Offered Easements"):
Public Utility Easements
Subject to Developer's performance of each and every covenant and condition of this
Agreement all other applicable conditions of approval (or City's written waiver thereof), City
agrees to accept the Offered Easements. Developer agrees not to revoke these offers and to
keep said offers open until City accepts the Offered Easements. Developer further agrees to
deliver to City at the time of City's acceptance of the offers such other executed conveyances,
reconveyances of security instruments, and other instruments necessary to convey clear title as
herein required. Developer, at Developer's sole cost and expense, shall provide to City at the
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time of City's acceptance of each Offered Easement a preliminary title report issued by a title
insurance company for the Offered Easement. The City and Developer intend that the Offered
Easement will, upon recordation of a Final Map or Maps covering the easement area, replace
the existing public utility easement on the Development Project site ("the Existing Easements").
In the event that the City accepts the Offered Easements and Developer subsequently provides
the City with a notice of its intent not to record the Final Map or Maps, then the City staff, if
requested by Developer and provided with all necessary materials, shall take all steps necessary
to present a vacation of the Existing Easements to the City Council, pursuant to applicable
provisions of the City Code and State law, and if no action by the City Council is required, City
staff shall take all steps necessary to vacate the Existing Easements. .
4. INSPECTION AND FINAL ACCEPTANCE OF PUBLIC IMPROVEMENTS
4.1 Developer shall at all times maintain proper facilities and safe access for
inspection of the Improvements by the City Engineer, or his or her designees.
4.2 Upon notice by Developer that the Improvements are complete, the City
Engineer shall act within the time periods established under Section 66499.7 of the California
Government Code. If City believes the material or workmanship of any Improvements do not
meet the Improvement Plans or specifications and standards, it shall identify any deficiencies
in writing and propose specific cures. If there are disagreements regarding the completion of
the Improvements, City and Developer shall meet and confer prior to City making a
determination regarding completeness and/or pursuing the remedies available to City under
this Agreement. Upon completion of the Improvements in substantial compliance with the
Make-Ready Improvement Plans and all applicable City standards, then the City Engineer shall
certify that the Improvements are complete and, no more than 30 days following such
certification, accept the Improvements on the City's behalf. After acceptance, the City Clerk
shall record a Notice of Completion pursuant to Cupertino City Code section 18.32.400.
Developer 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.
5. QUITCLAIM DEED
Not applicable.
6. SECURITY
6.1 Required Security. Prior to execution of this Agreement, Developer has
provided the following security to City in a form acceptable to the City:
6.1.1 Faithful performance. Security for faithful performance in the amount set
forth Part A Exhibit A, the SCHEDULE OF BONDS, FEES AND DEPOSITS to guarantee
performance of construction and installation of all Improvements ("Performance
Security"). This amount is equal to 100% of the estimated cost of construction and
installation of all Improvements. If the estimated costs of construction increase,
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Developer shall increase the amount of the Performance Security to cover such
increased costs.
6.1.2 Labor and Materials. Security for labor and materials in the amount set
forth Part B of Exhibit A, the SCHEDULE OF BONDS, FEES AND DEPOSITS to ensure
payment to all contractors, subcontractors, laborers, suppliers and materialmen
performing work or supplying materials for the Improvements in the aggregate amount
set forth in Exhibit A ("Labor and Materials Security"). This amount is equal to 100% of
the estimated cost of construction and installation of all Improvements. If the estimated
costs of construction increase, Developer shall increase the amount of the security to
cover such increased costs.
6.2 Form of Security. Developer 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 Developer fails to faithfully
perform the covenants and conditions of this Agreement, or to make any payment, or any
dedication of land, or any Improvements herein required, the City shall call on the surety to
perform this Agreement or otherwise indemnify the City for the Developer's failure to do so.
In lieu of a surety bond, the Developer may elect to secure Developer's performance
under 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 (b) or (c). The amount of said cash, checks, certificate of deposit, or instrument of credit
shall be as designated by the City Engineer, and shall be the equivalent to that which would
have been required had the Developer furnished the City with a faithful performance surety
bond. In the event that the Developer 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 to cure such
failure to perform or make such payment or dedication.
6.3 Release of Security. No release of surety bond, cash deposit, check or certificate
of deposit, or other form of security shall be made except upon approval of the Director of
Public Works. Schedule for bond and insurance release for paper bonds are as follows:
6.3.1 Release of 90 percent of the Performance Security upon the City's
determination that both demobilization of the construction crew and the work are
complete, thus establishing that Developer has ceased work on the Improvements,
where City's determination ('Release Determination") shall be made within three (3)
days of Developer providing written notice to City that both construction and
demobilization are complete.
6.3.2 Release of the remaining 10 percent of the Performance Security at one
year from the Release Determination and after any deficiencies have been corrected
and in the absence of any claim against such bond.
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6.3.3 Release of the entire labor and material bond at six months from the
Release Determination after all deficiencies have been corrected and in the absence of
any claim against such bond. If claims against the Labor and Material Security have been
filed, such security shall be 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. The balance of the security shall be released upon settlement or release of all
claims and obligations for which the security was given.
6.3.4 Liability insurance, provided by the Developer to hold the City harmless in
the event of liability arising from the project, to be retired at the end of one year from
the Release Determination if all deficiencies have been corrected and in the absence of
any claim against such insurance.
7. PAYMENT OF REQUIRED FEES
7.1 Permits and licenses. Developer shall, at its sole expense, obtain all necessary
permits and licenses for the construction and installation of the Improvements, give all
necessary notices (other than those required to be given by the City or other agency), and pay
all fees required by City ordinance, including but not limited to the fees described in this
Agreement, and all taxes required by law.
7.2 Fees. Developer has paid fees in the amounts set forth in Exhibit A, and
including all of the following fees noted in this section, as required.
7.2.1 Inspection Fees. Developer has made payment for all necessary direct
expenses for inspection, checking, etc. incurred by City in connection with the design,
installation and construction of the Improvements. Should the City's costs vary
materially from the estimate upon which said sum is calculated,the City Engineer shall
notify Developer of any additional sum due and owing as a result thereof.
7.2.2 Make Ready Improvement Plan Checking Fee. Developer has deposited
with City, prior to execution of this Agreement, for office checking of Make Ready
Improvement Plans.
8. MAINTENANCE AND WARRANTY
8.1 Warranty Period. Developer 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 year
after City's acceptance of the Improvements. This warranty period and Developer's obligation
under this Section 8 are not ended or diminished by the release of the Performance Bond
pursuant to Section 6.3.2 above.
8.2 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
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Agreement or the Make Ready Improvement plans and specifications, Developer shall repair,
replace or reconstruct any defective or otherwise unsatisfactory parts of the Improvements
without delay and at no cost to City. If(a) Developer fails to commence repairs within thirty
(30) days of the date of delivery of written notice from City, or (b) City determines that public
safety requires repair before Developer can be notified, City may, at its option, perform the
required repair itself. Developer agrees to pay the cost of any repairs City performs pursuant
to this agreement and City may, at its option, recover City's cost as a lien against Developer's
property.
9. UTILITIES
Developer shall pay to Pacific Gas and Electric Company, AT&T, and/or appropriate
utility companies, any and all fees required for installation of overhead and/or underground
wiring circuits to all electroliers within said Property and any and all fees required for
undergrounding as provided in Ordinance No. 331 of City when the Developer 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.
10. EASEMENTS AND RIGHT-OF-WAY
Not applicable.
11. HOLD HARMLESS AND INDEMNIFICATION
11.1 Developer shall indemnify and hold harmless City, its City Council, boards and
commissions, officers, officials, agents, employees, consultants and contractors (hereinafter,
"Indemnitees") from and against any liability, loss, damage, expense, and cost (including
reasonable legal fees and costs of litigation or arbitration), resulting from injury to or death of
any person, damage to property, or liability for other claims, stop notices, demands, causes of
actions and actions, to the extent arising out of or in connection with Developer's performance
or nonperformance of his/her duties under this Agreement, or from negligent acts or
omissions or willful misconduct of Developer, its agents, employees, contractors, or
subcontractors. Developer shall, at his/her own cost and expense, defend any and all claims,
actions, suits or legal proceedings that may be brought against the City or any of the
Indemnitees (with council acceptable to City) in connection with this Agreement or arising out
of Developer's performance or nonperformance of his/her duties and obligations of this
Agreement, except to the extent any of the foregoing is caused by the sole and active
negligence or willful misconduct of the City or the City's agents, employees and independent
contractors.
11.2 Developer's Continuing Obligation. After City's acceptance of the
Improvements, Developer 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 of the Improvements after the
final acceptance thereof by City or other responsible agency. This Section shall remain in full
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force and effect for ten (10) years following City's acceptance of the Improvements. Subject to
Section 13.1, Developer acknowledges and agrees that Developer 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 security specified in
section 6.1 shall not be required to cover the provisions of this Section beyond the guarantee
and warranty period specified in this agreement.
12. INSURANCE
Prior to commencing any of the public improvements or work referenced in this
Agreement and continuing through the expiration of the warranty period specified in this
agreement for all Improvements (or such longer period as necessary to ensure that all labor,
performance and material deficiencies have been corrected as specified in this Agreement and
all claims related to any Improvement have been settled or satisfied), Developer shall procure
and maintain for the duration of the Agreement, a policy or policies of insurance against claims
for injuries to persons or damages to property which may arise from or in connection with the
performance of the work hereunder by Developer, its contractor, agents, representatives,
employees or subcontractors.
Each insurance carrier shall be authorized to do business in the state of California and
have a Best's Insurance Rating of A, Class VII or better.
Developer shall file with the City Engineer at or prior to the time of execution of this
Agreement by the Developer evidence of insurance coverage satisfactory to the City. In the
event of cancellation of coverage, Developer shall promptly replace the required coverage so
that no lapse in insurance occurs and provide a certificate of insurance of the new coverage to
the City Engineer.
12.1 Coverage shall be at least as broad as:
12.1.1 Commercial General Liability (CGL): Insurance Services Office (ISO) Form
CG 00 01 covering CGL on an "occurrence" basis, written on a comprehensive general
liability form, and must include coverage for liability arising from Developer's
Contractors acts or omissions, including Contractor's protected coverage, blanket
contractual, products and completed operations, vehicle coverage and employer's non-
ownership liability coverage, with limits of at least $1,000,000 per occurrence and an
aggregate limit of not less than $2,000,000, along with a follow-form umbrella policy
with a liability limit of at least $2,000,000. The CGL policy must protect against any and
all liability for personal injury, death, property damage or destruction, and personal and
advertising injury. If a general aggregate limit applies, the general aggregate limit shall
apply separately to this project/location (ISO CG 25 03 or 25 04). The City of Cupertino,
its City Council, officers, officials, employees, agents, servants and volunteers are to be
covered as additional insureds on the CGL policy. Endorsement of CGL coverage shall be
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at least as broad as ISO Form CG 20 10 1185 or if not available,through the addition of
both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 if a later edition is used.
(a) Any available insurance proceeds broader than or in excess of the specified
minimum insurance coverage requirements and/or limits shall be made available to the
Additional Insured and shall be (1)the minimum coverage/limits specified in this agreement; or
(2) the broader coverage and maximum limits of coverage of any insurance policy, whichever is
greater.
(b) Additional Insured coverage under Developer's policy shall be "primary and non-
contributory" and shall be at least as broad as ISO CG 20 0104 13.
(c) The limits of insurance required may be satisfied by a combination of primary
and umbrella or excess insurance, provided each policy complies with the requirements set
forth in this Contract. Any umbrella or excess insurance shall contain or be endorsed to contain
a provision that such coverage shall also apply on a primary and non-contributory basis for the
benefit of City before the City's own insurance or self-insurance shall be called upon to protect
City as a named insured.
12.1.2 Automobile Liability on form CA 00 01 covering owned, hired, and non-
owned autos, with limit no less than $1,000,000 per accident for bodily injury and
property damage.
12.1.3 Workers' Compensation: As required by the State of California, with
Statutory Limits, and Employer's Liability Insurance of no less than $1,000,000 per
accident for bodily injury or disease.
12.2 For any claims related to this Agreement or the work, Developer's insurance
shall be "primary and non-contributory" and at least as broad as ISO CG 20 0104 13 with
respect to City, its officers, officials, employees and volunteers, and shall not seek contribution
from City's insurance. If the limits of insurance are satisfied in part by Umbrella/Excess
Insurance, the Umbrella/Excess Insurance shall contain or be endorsed to contain a provision
that such coverage shall also apply on a "primary and non-contributory" basis for the benefit
of City. Each insurance policy must provide that coverage will not be canceled, except with
thirty (30) days' notice to City. Each certificate of insurance must state that the coverage
afforded by the policy is in force and will not be reduced, cancelled or allowed to expire
without at least 30 days advance written notice to City, unless due to non-payment of
premiums, in which case ten days advance written notice must be provided to City. Such
notice must be sent to City via certified mail and addressed to the attention of the City
Manager.
The Workers' Compensation policy must be endorsed with a waiver of subrogation in
favor of the City for all work performed by Developer or Developer's Contractor, its employees,
agents and subcontractors.
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13. MAPS AND/OR IMPROVEMENT PLANS
Developer shall provide City with the following maps and/or plans at the Developer's
expense:
A. A scan in .pdf format of all executed Make Ready Improvement Plans.
14. SUCCESSORS AND ASSIGNS-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 Developer by this Agreement.
15. DEFAULT, BREACH, AND REMEDIES TO THE CITY
15.1 Default. Default of Developer shall include, but not be limited to:
15.1.1 Developer's failure to timely commence construction of Public
Improvements under this Agreement;
15.1.2 Developer's failure to timely complete construction of the Improvements
within the time specified in Section 2.1;
15.1.3 Developer's failure to timely cure any defect in the Improvements;
15.1.4 Developer's failure to perform substantial construction work for a period
of 20 consecutive calendar days after commencement of the work;
15.1.5 Developer's insolvency, appointment of a receiver, or the filing of any
petition in bankruptcy, either voluntary or involuntary, that is not discharged within 30
days;
15.1.6 The commencement of a foreclosure action against the Property or a
portion thereof, or any conveyance in lieu or in avoidance of foreclosure;
15.1.7 Developer's failure to maintain any insurance policy required under this
Agreement; or
15.1.8 Developer's failure to perform any other obligation under this
Agreement.
15.2 Remedies Cumulative. City reserves all remedies available to it at law or in
equity for breach of Developer's obligations under this Agreement. In addition to the right to
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compel specific performance of this Agreement and to seek recovery of damages, City shall
have the right, subject to this section, to draw upon or use the appropriate security to do or
cause to be done acts required of Developer that Developer has failed to perform or to
otherwise mitigate City's damages in the event of default by Developer. City's right to draw
upon or use the security is in addition to any other remedy available to City. City agrees to
draw upon or attempt to draw upon such security prior to initiating legal or equitable action to
recover damages or obtain specific performance. 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 Developer'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 Make Ready
Improvement Plans. City shall also have recourse against Developer for any and all amounts
necessary to complete the obligations of Developer in the event that the security is insufficient
to pay such amounts.
15.3 City Performance at Developer's Expense. In the event that Developer fails to
cure any default under this Agreement within twenty (20) days after the City mails written
notice of such default to Developer and Developer's surety, Developer authorizes City to
perform the obligations for which Developer is in default and agrees to pay the entire cost of
such performance by City.
15.4 Surety Liability and Use of Materials. In the event that City elects to perform
the obligations for which Developer is in default, 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 Developer, and Developer'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 at
its sole option take possession of and use any of Developer's materials, appliances, plant and
other property that are owned by Developer and are located at the work site and are
necessary to complete the Improvements.
15.5 Developer Payment of City Costs. In the event that Developer fails to perform
any obligation under this Agreement, Developer 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
reasonable attorneys' fees, provided City submits reasonable documentation of any such fees
and charges.
15.6 No Waiver. 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 Developer.
16. NOTICES
Except as otherwise specified herein, all notices, demands, requests or approvals sent
pursuant to this Agreement shall be given in writing and sent to the Parties at their respective
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addresses specified below or to such other address as a Party may designate by written notice
delivered to the other parties in accordance with this Section. All such notices shall be sent by:
(a) personal delivery, in which case notice is effective upon delivery; (b) certified or registered
mail, return receipt requested, in which case notice shall be deemed delivered upon receipt if
delivery is confirmed by a return receipt; (c) nationally recognized overnight courier, with
charges prepaid or charged to the sender's account, in which case notice is effective on delivery
if delivery is confirmed by the delivery service; or (d) postage prepaid registered or certified
mail, in which case notice shall be deemed delivered on the second business day after the
deposit thereof with the U.S. Postal Service.
All notices, demands, requests, or approvals from Developer to City shall be addressed
to City at:
City of Cupertino
10300 Torre Ave.
Cupertino CA 95014
Attention: Public Works Director
All notices, demands, requests, or approvals from City to Developer shall be addressed
to Developer at:
Vallco Property Owner, LLC
C/O Sand Hill Property Company
965 Page Mill Road
Palo Alto, CA 94304
17. 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 that 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 having jurisdiction over this Agreement (or the
successors of those authorities.) Any suits brought pursuant to this Agreement shall be filed and
heard in the courts with jurisdiction in the County of Santa Clara, State of California.
In any lawsuit to enforce any provision of this Agreement, each party shall bear its own
costs and fees, except as otherwise provided by law.
18. RELATIONSHIP OF PARTIES
Neither Developer nor any of its contractors, employees or agents shall be deemed to
be agents of the City in connection with the Performance of Developer's obligations under this
Agreement.
17571.0014816-9537-4775.9 Page 12 of 16
19. DEVELOPER TO WARN PUBLIC
Until final acceptance of the Improvements, Developer shall give good and adequate
warning to the public of any condition that has the potential to be hazardous, and shall take
reasonable actions to protect the public from such condition.
20. 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.
21. INTEGRATED AGREEMENT; AMENDMENTS IN WRITING
This Agreement, including Exhibits A and B, attached hereto and incorporated herein by
this reference, represents the full and complete understanding between the parties with
respect to the subject matter hereof and all preliminary negotiations and oral or written
agreements with respect thereto 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 instrument signed by both City and Developer.
22. TIME IS OF THE ESSENCE
Time is of the essence in the performance of this Agreement by Developer and City.
23. HEADINGS; CONSTRUCTION; STATUTORY REFERENCES
The headings of the sections and paragraphs of this Agreement are for convenience only
and shall not be used to interpret this Agreement. This Agreement is the product of negotiation
between the parties. The language of this Agreement shall be construed as a whole according
to its fair meaning and not strictly for or against any party. Any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not apply in
interpreting this Agreement. All references in this Agreement to particular statutes, regulations,
ordinances or resolutions of the United States, the State of California, or the City of Cupertino
shall be deemed to include the same statute, regulation, ordinance or resolution as hereafter
amended or renumbered, or if repealed, to such other provisions as may thereafter govern the
same subject.
24. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which shall be
deemed to be an original, and all of which taken together shall constitute one and the same
instrument.
17571.0014816-9537-4775.9 Page 13 of 16
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their
respective, duly authorized officers on the date listed above.
Approved as to form: CITY OF CUPERTINO:
Heather Minner Roger Lee
City Attorney Director of Public Works
Dr
al Pr�4V(t �r, LLC
Name:
: 1/�l
Title:
Exhibits:
Exhibit A- Schedule of Bonds, Fees and Deposits
Exhibit B—Depiction of Public Utility Easements
17571.0014816-9537-4775.9 Page 14 of 16
Exhibit A
SCHEDULE OF BONDS, FEES, AND DEPOSITS
Street Improvement Category:
PART A. Faithful Performance Bond: $778,000
PART B. Labor and Material Bond: $778,000
PART C. Checking and Inspection Fee: $38,900 (PAID)
17571.0014816-9537-4775.9 Page 15 of 16
Exhibit B
Depiction of Public Utility Easements
17571.0014816-9537-4775.9 Page 16 of 16
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' ` ` • ` 215028 OF i SHEETS
Copyright 9 2019 by Sandis
0 10 20
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1700 Winchester Boulevard, Campbell,CA 95008 1 P.408.636.0900 1 F. 400.636.0999 1 www.eandie.net oRAWINGNa: CUPERTINO CA
• � • 215028 OF 1 SHEETS
Copyright C 2020 by Sandis
0 20 40
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— — — — — — — — EXISTING ROADWAY EASEMENT
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• • 215028 OF 1 SHEETS
Copyright C 2019 by Sandis
ACKNOWLEDGMENT
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 SAO ef ZA-KA )
On_ZI )w before me, L4TL9i2 tj u j3 L.1L
/� (insert ame and title of th officer)
personally appeared � �z Lam
who proved to me on the basis of satisfactory a idence to be the person(s)whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) 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.
WITNESS my hand and official seal.
°. J KATI E YAO
Notary Public-California
Santa Clara County
Commission#2266120
My Comm.Expires Dec 5,2022
Signature (Seal)
17571,001 4816-9537-4 775.9
CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT
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 Santa Clara
On jJ U Zc2� before me, Lauren Sapudar ,Notary Public,
(Here insert name and title of the officer)
personally appeared ?�oa cr LgA
ci
who proved to me on the basis of satisfactory evidence to be th erson ) whose am subscribed to
the within instrument and acknowledged to me that /she/they executed the same in er/their authorized
a a " (ies), and that by(S-D'her/their ignatu s) on the instrument the erso (s), or the entity upon behalf of
which the p rso (s) 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.
UUREN SAPUDAR
WITH S my hand and official seal. •"�,
Notary Public•California
_ = Santa Clara County ;
Commission=2247155
My Comm.Expires Jun 22,2022
(Notary Seal)
gn ture of Notary Pu lic
ADDITIONAL OPTIONAL INFORMATION
INSTRUCTIONS FOR COMPLETING THIS FORM
Any acknowledgment completed in California must contain verbiage exactly as
DESCRIPTION OF THE ATTACHED DOCUMENT appears above in the notary section or a separate acknowledgment form must be
properly completed and attached to that document. The only exception is if a
document is to be recorded outside of California.In such instances,any alternative
(Title or description of attached document) acknowledgment verbiage as may be printed on such a document so long as the
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
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g signer(s)personally appeared before the notary public for acknowledgment.
• Date of notarization must be the date that the signer(s)personally appeared which
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