21-265 Subdivision Improvment Agreement, 21271 Steven's Creek BlvdRECORDING REQUESTED BY:
City of Cupertino
WHEN RBCORDED, MAIL TO:
City Clerk's Office
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014-3255
NO FEE IN ACCORDANCE
WITH GOV. CODE 27383
"This document was electronically submitted
to Santa Clara County for recording'
25176985
Regina Alcomendras
Santa Clara County - Clerk-Recorder
ll /23/2021 02:49 PM
Titles: 1 Pages: 42
Fees: $0.00
Tax: $0
Total: $0.00
(SPACE ABOVE THIS LINE FOR RECORDE:R'S USE)
SUBDIVISION IMPROVEMENT AGREEMENT
21271 Stevens Creek Boulevard, Cupertino, CA 95014
APN: 326-27-042 & 326-27-043
Original
0 Conformed Copy
DOC #25176985 Page 2 of 42
City of Cupertino
SUBDIVISION IMPROVEMENT AGREEMENT
21267 & 21269 Stevens Creek Blvd., Cupertino, CA 95014
APNs: 326-27-042 and 326-27-043
This agreement ("Agreement") is made and entered into this u day of i 2021, by
and between the City OF CUPERTINO, a municipal corporation of the State of California, ("City"),
and,190 West St. James, LLC, a California Limited Liability Company ("Subdivider") for a three-lot
mixed-use subdivision located at 21267 & 21269 Stevens Creek Blvd., Cupertino, CA (APNs 326-
27-042 and 326-27-043)
RECIT ALS
1. Pursuant to the Subdivision Map Act of the State of California and the City's local
ordinances and regulations relating to subdivision maps, Subdivider has presented to the City for
approval a final subdivision map, Tract No. 10579 (the "Map") for the subdivision of certain real
property in the City of Cupertino, designated as Final Map for a Three-Lot Subdivision and 88
condominium units for Parcel A at 21269 Stevens Creek Blvd. (the "Subdivision").
2. Subdivider has prepared and City has approved'the following plans and related
specifications (the "Improvement Plans") for construction, installation and completion of certain
public improvements in connection with the Subdivision (the "Improvements). The Improvement
Plans titled "Off-Site Improvement Plans for Westport, Cupertino," prepared by Kimley Horn and
dated October 20, 2021 are on file in the City's Department of Public Works and are incorporated
into this Agreement by this reference.
3. Subdivider has also offered for dedication to City certain streets, ways and easements
delineated on the Map (the "Dedications").
4. On kiiesrh"it?,! 'd%, 2021, the City Council approved the Map and offers of dedication
shown on the Map, conditioned on Subdivider entering into this Agreement to construct and
complete the Improvements.
NOW, THEREFORE, in consideration of City's approval of the Map, and in order to ensure
satisfactory performance by Subdivider of its obligations under the Subdivision Map Act and the
Cupertino Municipal Code, City and Subdivider agree as follows:
1.SUBDMDER'S OBLIGATION TO CONSTRUCT IMPROVEMENTS
(a) Completion of Improvements. Subdivider, at its own expense, and in
compliance with all provisions of the Subdivision Map Act, the Cupertino
Municipal Code, the Map and any amendments thereto, and other
applicable laws, shall perform the furnishing, installation, and construction
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of all required Improvements in conformance with the Improvement Plans
("the Work"). The decision of the City Engineer shall be final as to whether
any material or workmanship meets the applicable plans, specifications, and
standards as set forth herein and in the Improvement Plans.
(b)Compliance with applicable laws and rules. Subdivider shall construct the
Improvements in accordance with the most current applicable standards
and specifications of the Department of Public Works, the State 6f California
including without limitation the California Department ofTransportation
(collectively the "State Specifications"l and in accordance with the
specifications of the Cupertino Sanitary District where applicable. Wherever
the words "State" or "California Division of Highways" are mentioned in the
State Specifications, it shall be considered as referring to the City of
Cupertino; also wherever the "Director" or "Director of Public Works" is
mentioned, it shall be considered as referring to the City Engineer. In case of
conflict between the State Specifications and the specifications of the City,
and/or the Cupertino Sanitary District, the specifications of the City and/or
the Cupertino Sanitary District shall take precedence over and be used in
lieu of such conflicting portions, unless otherwise approved by the City
Engineer.
Repair and replacement of damaged public facilities. Subdivider shall, at its
own expense, repair or replace all public improvements, public utility
facilities, surveying monuments and other public facilities that are destroyed
or damaged as a result of the Work. Subdivider shall promptly notify the City
Engineer of such damage and shall obtain the City Engineer's approval of all
repair and replacement of damaged facilities.
(d)Subdivider"s responsibility until City's acceptance. Until City accepts the
Improvements, Subdivider shall be responsible for the care and
maintenance of such Improvements and shall bear all risks of loss or damage
to the Improvements. City shall not have any liability for any accident, loss
or damage to the Improvements prior to their completion and acceptance
by City. City"s acceptance of the Improvements shall not constitute a waiver
of any defects in the Improvements or Subdivider"s obligation to repair such
defects as provided in Section 8 of this Agreement.
(e)Time for installation or Improvements. Subdivider shall install and complete
the Improvements within eighteen (18) months from the date of execution
of this Agreement, or such longer period as may be specifically authorized in
writing by the City Engineer pursuant to section 1(f) of this Agreement. In
the event the Subdivider fails or refuses to complete the Work within the
specified period of time, then, following compliance with the default
provisions of Section 15 hereof, the City is hereby authorized to complete
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the Work in accordance with the Improvement Plans and all applicable
standards, subject to changes that the City determines in its sole discretion
are necessary. In the event the City completes the Work, the City may
recover all costs incurred thereby from the Subdivider or, pursuant to bonds
posted as set out in Section 5 below, the Subdivider"s surety, or both. No
final inspection shall be granted or street improvements shall not be
accepted unless all the requirements for safety purposes are installed, such
as sidewalks, handicap ramps, street lights, etc.
(f) Time extensions. The City Engineer, in his or her reasonable discretion, may
approve, in writing, a request for extension of the time required for the
Work upon a showing of good cause by the Subdivider. Good cause shall
include, without limitation, the occurrence of any of the events of Force
Majeure as defined herein. If the Force Majeure delay exceeds three
months, then in approving a request for time extension, the City Engineer
may impose reasonable related conditions, such as requiring Subdivider to
furnish new or modified improvement security guaranteeing performance of
this Agreement, as extended, in an increased amount necessary to
compensate for any projected increase in the estimated total cost of
Improvements, as determined by the City Engineer.
(g) Force Majeure. Whenever a period of time is herein prescribed for action to
be taken by either party, the party taking the action shall not be liable or
responsible for, and therefore shall be excluded from the computation of
any such period of time, any delays due to strikes; riots; acts of God;
shortages of labor or materials; terrorist activities; acts of war; laws,
restrictions, ordinances, orders, regulations, directions, rules, requirements,
controls and other measures issued, enacted or promulgated by
governmental or quasi-governmental authorities in an effort to protect
public health and safety, including without limitation shelter-in-place, safer-
at-home, safe distancing and similar orders; or any other causes of any kind
whatsoever which are beyond the control of such acting party, and which in
any of such events, cannot be overcome by the commercially reasonable
efforts of the acting party ("Force Majeure").
(h) . Subdivider shall, at its own expense, obtain, and comply with the
conditions of all necessary permits and licenses for the construction of the
Improvements and give all necessary notices and pay all fees and taxes
required by law.
DEDICATION OF EASEMENTS OR RIGHTS OF WAY
(a) On the face of the Final Map, Developer irrevocably offers to the City (a) in
fee the real property referenced on the Final Map (the "Rights of Way"), to
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be conveyed by an instrument in the form shown in Exhibit B ("the
Dedication") and (b) the following easements, as shown on the Final Map:
o Emergency Access Easements, which shall be offered and
granted solely on the face of the Final Map;
o Public Access Easements, which shall be offered and granted
solely on the face of the Final Map;
o Pedestrian and Bicycle Access Easements, which shall be
offered and granted solely on the face of the Final Map;
o Sanitary Sewer Easements, which shall be offered and
granted solely on the face of the Final Map;
o Public Service Easements, which shall be offered and granted
solely on the face of the Final Map.
o Storm Water Management Easements, which shall be granted
via the Stormwater Management Facilities Operations, Maintenance
and Easement Agreement substantially in the form of Exhibit C ("the
SWME");
(b) Prior to Final Map recordation, Developer shall deliver to the City for
recordation the Dedication along with such other executed conveyances,
reconveyances of security instruments, and other instruments necessary to
convey clear title as herein required. Prior to the City Engineer's acceptance
of Improvements pursuant to Section 3.5 below, Developer shall deliver to
the City for recordation the SWME. Deve!oper, at Developer's sole cost and
expense, shall provide to City prior to Final Map recordation a preliminary
title report issued by a title insurance company for each Right of Way and
easement offered on the Final Map.
INSPECTION AND FINAL ACCEPTANCE
(a) Subdividershallatalltimesmaintainproperfacilitiesandsafeaccessfor
inspection of the Improvements by the City Engineer, or his/her designee.
(b) Uponcompletionofthelmprovementsincompliancewiththelmprovement
Plans and aH applicable standards, the City Engineer or, for facilities to be
accepted by the appropriate public utility companies, the utility company's
designee, shall perform a final inspection to determine the completeness of
the Improverrients. If the City Engineer and/or the public utilit'y company
designee determines the Improvements are complete and meet all
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applicable standards and specifications, he or she shall accept the
Improvements on the City's behalf. If requested by Developer, the City may
consider acceptance of a portion of the Improvements as recommended by
the City Engineer pursuant to City Code Section 18.32.410. After
acceptance, the City Clerk shall record a Notice of Completion pursuant to
Cupertino City Code section 18.32.400.
(C)Subdivider shall bear all costs ofinspection and certification for acceptance.
Acceptance by the City Engineer and/or public utility company designee
shall not constitute a waiver by the City and/or the public utility company of
any defects in the Improvements.
4.GROUNDWATER RIGHTS
Subdivider, when requested by the City, shall quitclaim all his/her rights and interests in, and shall
grant to City authorization to extract water from the underground strata lying beneath said
project. Subdivider agrees to execute a "Quitclaim Deed and Authorization" regarding such rights,
in favor of City upon such request.
5.SECURITY
(a) Required security. Prior to execution of this Agreement, Subdivider shall
provide the following security to City in one of the forms set out in Section
5.b below.
(1) Faithful performance. Security for faithful performance of this
Agreement in the amount set forth in Part A of Exhibit A.
(2) Labor and materials. Security for labor and materials in the amount
set forth in Part B of Exhibit A.
(b)Form of Security. Subdivider shall provide as security, bonds executed by a
surety company authorized to transact a surety business in the State of
California and approved by the City as to sufficiency. In the event that the
Subdivider shall fail to faitMully 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 Subdivider"s failure
to do so.
In lieu of a surety bond, the Subdivider may, with the City's consent, which
the City may grant or withhold in its sole and absolute discretion, elect to
secure its performance of 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
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acceptable to the City and meeting the requirements of Government Code
Section 66499 (a) or (b). The amount of said cash, checks, certificate of
deposit, or instrument of credit shall be as Subdivider set forth in Parts A
and/or B of Exhibit A. In the event that the Subdivider shall fail to faithfully
perform the covenants and conditions of this Agreement, or to make any
payment, or any dedication of land, or any improvements herein required,
the City may apply the proceeds of said security thereto.
(c) Release of security. Security shall be released as follows:
(1)Upon the recordation of a Notice of Completion for the
Infrastructure in accordance with Section 3(b), 90 percent of the
faithful performance security shall be released. The Security
remaining following such release is referred to herein as the
"Remaining Security.".
(2)Release of the remaining 10 percent of the faithful performance
security at one year from acceptance, or if the City issues a written
notice or notices of defect pursuant to Section 8, one year after all
such defects have been corrected, provided that prior to the release
of the remaining amount the Director of Public Works shall have
certified that no claims regarding the workmanship or quality of the
Infrastructure have been filed against the City, all such claims have
been satisfied, withdrawn, or otherwise secured by bond or other
security approved by the City Engineer.
(3)Release of the entire labor and material security at six months from
acceptance, or if the City issues a written notice or notices of defect
pursuant to Section 8, six months after all such defects have been
corrected, provided that prior to the release of the security, the
Director of Public Works shall have certified that no claims by any
contractor, subcontractor or person furnishing labor, materials or
equipment for the Infrastructure has been filed against the City. In
the event that claims have been filed, the land and materials security
may 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, plus an amount reasonably determined by the
City Engineer to be required to assure the performance of any other
obligations secured by the security. The balance of the security shall
be released upon settlement or release of all claims and obligations
for which the security was given.
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PAYMENT OF REQUIRED FEES
Permits and licenses. Subdivider shall, at its sole expense, obtain all
necessary permits and licenses for the construction and installation of the
Improvements, give all necessary notices, and pay all fees required by City
ordinance, including but not limited to the fees described in this Agreement,
and all taxes required by law.
(b)Fees. The Parties acknowledge that as a precondition to the execution of
this Agreement, Subdivider has paid or will pay such at the time required
under the Cupertino Municipal Code and/or City Council Resolution 20-106,
fees in the amounts set forth in Exhibit A, including but not limited to the
following:
(1)Plan Check & Inspection and Miscellaneous Fees. Subdivider shall pay
all fees as set by the current adopted fee schedule at the time of
payment, prior to execution of this Agreement. Should construction
costs vary materially from the estimate from which this sum is
calculated, the City Engineer shall notify Subdivider of any additional
sum due and owing as a result thereof.
(2)Storm Drainage Fee. Subdivider shall deposit with the City, prior to
execution of this Agreement, a storm drainage charge as set by the
current adopted fee schedule at the time of payment in connection
with the said Projectin accordance with the requirements
established in Resolution 4422, March 21, 1977, and as subsequently
amended.
(3)Map Checking Fee. Subdivider shall deposit with City, prior to
execution of this Agreement, for office checking of final map and
field checking of street monuments, in compliance with Section 4:1
of Ordinance No. 47 (Revised 12/04/61) of City, and per the City's
adopted fee schedule at the time of fee payment.
(4)Park Fee. Subdivider shall pay, by the earliest of December 31, 2021
and the recordation of first conveyance of any portion of the any lot
in the Subdivision from Subdivider to any other party, pursuant to
the City Council resolution approving this Agreement. Park fees are
calculated in accordance with the action originally adopted by the
City Council on March 19, 1991 and Chapter 14.05 or Section
18.24.030 of the Cupertino Municipal Code and as subsequently
amended, as set out in the City's adopted fee schedule at the time of
fee payment.
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(5)Transportation Impact Fee. Subdivider shall pay such fees set out in
the City's adopted fee schedule at the time of fee payment, prior to
issuance of the first building permit for development within the
subdivision, as is required under Chapter 14.02 of the Cupertino
Municipal Code, and as subsequently amended.
STREET TREE INST ALLATION
Subdivider shall, plant and maintain street trees in conformance with the standards of the City of
Cupertino. The variety, number and location of trees shall conform to Cupertino Ordinance no.
125 and will be subject the prior approval of the Director of Public Works.
MAINTENANCE AND WARRANTY
(a) Warranty period. Subdivider guarantees and warrants the Improvements to
be accepted by the City and agrees to remedy any defects, damages, or
imperfections in the Improvements arising from faulty or defective materials
or construction of the Improvements for a period of one (1) year after City's
acceptance of the Improvements. Subdivider's obligation under thiS section
shall include the repair, replacement, or reconstruction of all irrigation
systems and all trees, shrubs, ground cover and landscaping for the required
one-year period.
(b) Warranty repairs and replacements. If, within the warranty period, the
Improvements to be accepted by the City or any part of the Improvements
to be accepted by the City fail to fulfill any of the requirements of this
Agreement or the Improvement Plans, Subdivider shall repair, replace or
reconstruct any defective or otherwise unsatisfactory parts of the
Improvements without delay and at no cost to City. If (a) Subdivider fails to
commence repairs within thirty (30) days of the date of mailed written
notice from City, or (b) City determines that public safety requires repair
before Subdivider can be notified, City may, at its sole option, perform the
required repairitself. Subdivider agrees to pay the cost of any repairs City
performs pursuant to this agreement and City may, at its sole option,
recover that cost through the security provided under this Agreement and,
as to any deficiency after the application of the security, as a lien against
Subdivider"s property within the Subdivision.
SANIT ARY DISTRICT
Subdivider shall file with the City, upon execution of this Agreement, a letter from the Cupertino
Sanitary District stating that the Subdivider has submitted plans for review by the District and that
sanitary sewer capacity is available to serve all lots within the Project.
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10.GOVERNMENT COSTS
Subdivider shall file with the City, upon execution of this Agreement, substantial evidence that all
provisions of Section 66493, Article 8, Chapter 4 of the Government Code, pertaining to special
assessments or bonds, have been complied with.
11.UTILITIES
Subdivider shall pay to Pacific Gas and Electric Company, AT&T, and/or appropriate utility
companies, all fees required for installation of overhead and/or underground services to said
property and all fees required for undergrounding as provided in Ordinance No. 331, or
subsequently adopted ordinances of City or regulations of the appropriate utilities, when the
Subdivider is notified by either the City Engineer, Pacific Gas and Electric Company, AT&T, or
appropriate utility companies that said fees are due and payable.
12.HOLD HARMLESS AND INDEMNIFICATION
(a) To the fullest extent allowed by law, Subdivider shall indemnify and hold
harmless City, its City Council, boards and commissions, officers, officials,
agents, employees, servants, consultants and volunteers (hereinafter,
"lndemnitees") 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, arising out of or in any way related to Subdivider"s performance or
nonperformance of his/her duties under this Agreement, or from negligent
acts or omissions or willful misconduct of Subdivider, its agents, employees,
contractors, or subcontractors. Subdivider 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
Subdivider's performance or nonperformance of his/her duties and
obligations hereunder, including all claims, demands, causes of action,
liability or loss because of or arising out of, in whole or in part, the design
and construction of the Improvements. This indemnification and agreement
to hold harmless shall extend to injuries to persons and damages ortaking
of property resulting from the design or construction of the Subdivision, and
the Improvements described in this Agreement, and in addition, to adjacent
property owners as a consequence of the diversion of waters from the
design or construction of public drainage systems, streets and other
Improvements, except to the extent any of the foregoing is caused by the
negligence or willful misconduct of the City or the City's agents, employees
and independent contractors.
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(b) AcceptancebyCityofthelmprovementsshallnotconstituteanassumption
by City of any responsibility for any damage covered by this section. City
shall not be responsible forthe design or construction ofthe Subdivision or
the Improvements pursuant to the approved Improvement Plans or map,
regardless of any negligent action or inaction taken by the City in approving
the plans or map, unless the particularimprovement design was specifically
required by City over written objection by Subdivider, indicating that the
particularimprovement design was dangerous or defective and suggested
an alternative safe and feasible design, submitted to the City Engineer
before approval of the particular improvement design.
(c) After City's acceptance of the Improvements, Subdivider shall remain
obligated to correct or eliminate any defect in design or dangerous
condition created by defects in design or construction, provided however,
that Subdivider shall not be responsible for routine maintenance. Provisions
of this section shall remain in full force and effect,for ten (10) years
following City"s acceptance of the Improvements. Subdivider acknowledges
and agrees that Subdivider shall be responsible and liable for the design and
construction of the Improvements and other work done pursuant to this
Agreement and that City shall not be liable for any acts or omissions in
approving, reviewing, checking, correcting, or modifying any Improvement
Plans or related specifications or in approving, reviewing or inspecting any
work or construction. The improvement security shall not be required to
cover the provisions of this paragraph beyond the guarantee and warranty
period specified in this agreement.
13.INSURANCE
Prior to commencing any of the Work, Subdivider shall procure and maintain for the duration of
the Work, plus an additional year from the date of acceptance for the Commercial General Liability
coverage specified below, insurance against claims for injuries to persons or damages to property
which may arise from orin connection with the performance of the work hereunder by Subdivider,
its contractor, agents, representatives, employees or subcontractors.
Coverage shall meet the following requirements:
(a) Commercial General Liability (CGL) shall be on Insurance Services Office
(150) 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 Subdivider'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 !92,000,000 per occurrence. The CGL
policy must protect against any and all liability for personal injury, death,
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property damage or destruction, and personal and advertising injury. If a
general aggregate limit applies, either the general aggregate limit shall apply
separately to this project/location (150 CG 25 03 or 25 04) or the general
aggregate limit shall be twice the required occurrence limit.
(1)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.
(2) Additional Insured coverage under Subdivider"s policy shall be
"primary and non-contributory" and shall be at least as broad as 150
CG 20 01 04 13.
(3)The limits ofinsurance 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.
(b) Automobile Liability shall cover owned, hired, and non-owned autos, with
limit no less than 91,000,000 per accident for bodily injury and property
damage.
(c) Workers' Compensation, as required by the State of California, shall cover
Statutory Limits, and Employer's Liability Insurance of no less than
Sl,000,000 per accident for bodily injury or disease.
(d) If Subdivider maintains broader coverage and/or higher insurance limits, City
will be entitled to Subdivider"s broader coverage and/or higher limits.
(e)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 at least as broad as 150 Form
CG 20 10 11 85 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.
(f) ForanyclaimsrelatedtothisAgreementortheWork,Subdivider"s
insurance shall be "primary and non-contributory" and at least as broad as
150 CG 20 01 04 13 with respect to City, its officers, officia0s, employees and
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volunteers, and shall not seek contribution from City's insurance. If the
limits ofinsurance 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 nori-
contributory" basis for the benefit of City.
Each insurance policy must provide that coverage will not be canceled,
except with 30 days' notice to City. Each certificate ofinsurance 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.
(h)Each required policy must include an endorsement providing that the carrier
agrees to waive any right of subrogation it may have against City. Further,
Subdivider agrees to waive any rights of subrogation which any of
Subdivider"s insurers may acquire from Subdivider by virtue of payment of
any loss. Subdivider agrees to obtain any endorsement that may be
necessary to affect this waiver of subrogation. The Workers' Compensation
policy must be endorsed with a waiver of subrogation in favor of the City for
all work performed by Subdivider or Subdivider"s Contractor, its employees,
agents and subcontractors.
(i) Insurance must be issued by insurers licensed in the State of California and
with an A.M. Best's financial strength rating of "A Vll" or better.
14.COVENANT RUNNING WITH THE LAND; ASSIGNMENT
(a) 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, to which recording the Parties each hereby consent.
Upon any sale or division of the Property, the terms, covenants, conditions
and restrictions of this agreement shall apply to each parcel, and the owner
or owners of each parcel shall succeed to the obligations imposed upon
Subdivider by this Agreement.
(b) Except as pursuant to Section 14(a), Subdivider shall not assign this
Agreement without the prior written consent of the City. Any attempted or
purported assignment in violation of this paragraph shall be null and void
and have no force or effect. The sale or other disposition of the Project shall
not relieve Subdivider of its obligations under this Agreement. If Subdivider
intends to sell the Project or any portion of the Project to any other person
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or entity, Subdivider may request a novation of this Agreement and
substitution ofimprovement security. Notwithstanding the foregoing, City
agrees that in the event that the City declines in writing to exercise its rights
under Section 1(e) above, if the Subdivision has been subdivided (or further
subdivided) the fee owner of any lot within the Subdivision (a "Subsequent
Owner"), is authorized to complete the Work required to be performed by
Subdivider under this Agreement, even if such portion of the Improvements
will not be situated on the Subsequent Owner's lot. Any Subsequent Owner
who undertakes to complete the Improvements or part thereof shall be
subject to and benefit from the inspection and acceptance procedures set
out in Section 3 above, and may recover all costs incurred thereby from the
Subdivider. In the event that Subsequent Owner is unable to recover such
costs from Subdivider, the City and Subsequent Owner will enter good-faith
discussions regarding reimbursement to Subsequent Owner from the
proceedsofthe securityprovidedbySubdividerunderthisAgreement.
15.DEFAULT, BREACH, AND REMEDIES TO CITY
(a)Default of Subdivider shall include, but not be limited to the events listed in
this section 15(a) (each an "Event of Default"). No Event of Default shall
become an actual Default of Subdivider under this Agreement (each, a
"Default"), unless City first provides written notice of said Event of Default
to Subdivider, any mortgagee of Subdivider of which City has received
written notice, and Subdivider's surety and thereafter Subdivider fails to
cure the Event of Default within thirty (30) days of its, its mortgagee's (if
applicable) and its surety"s receipt of notice, or, if the Event of Default is of a
nature that can not reasonably be cured in said time, initiates steps to cure
the Event of Default within said 30-day period and thereafter cures the
Event of Default within a reasonable time. An Event of Default includes
without limitation:
(1) Subdivider's failure to timely commence construction of the
Improvements under this Agreement;
(2) Subdivider's failure to timely complete construction of the
Improvements;
(3) Subdivider's failure to timely cure any defect in the Improvements;
(4) Subdivider's failure to perform substantial construction work for a
period of 60 consecutive calendar days after commencement of the
work;
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DOC #25176985 Page 15 of 42
(5) Subdivider'sinsolvency,appointmentofareceiver,orthefilingof
any petition in bankruptcy, either voluntary orinvoluntary, which
Subdivider.fails to discharge within 30 days;
(6)The commencement of a foreclosure action against the Subdivision
or a portion thereof, or any conveyance in lieu or in avoidance of
foreclosure; Subdivider's failure to maintain any insurance policy
required under this Agreement; or
(7) Subdivider"sfailuretoperformanyotherobligationunderthis
Agreement.
(b) CityshallprovidewrittennoticeofanyEventofDefaultofSubdividertoany
Subsequent Owner of which the City has received written notice,
concurrently with any written notice of said Event of Default to Subdivider.
The City reserves all remedies available to it at law or in equity for breach of
Subdivider's obligations under this Agreement. Upon the occurrence of a
Default, the City shall have the right, subject to this section, to draw upon or
use the appropriate security to mitigate the City's damages in the event of a
Default of Subdivider. The City's right to draw upon or use the security is in
addition to any other remedy available to the City. The parties acknowledge
that the estimated costs and security amounts may not reflect the actual
cost of construction of the Improvements and, therefore, the City's damages
for a Default of Subdivider shall be measured by the cost of completing the
required Improvements. The City may use the sums provided by the security
for completion of the Improvements in accordance with the Improvement
Plans.
(d) In the event of a Default of Subdivider, Subdivider authorizes the City to
perform the obligations for which Subdivider is in default and agrees to pay
the entire cost of such performance by the City.
(e)The City may take over the Work and complete the Improvements by
contract or by any other method the City deems appropriate, at the expense
of Subdivider, and Subdivider's surety shall be liable to the City for any
excess cost or damages to the City resulting therefrom. In such event, the
City, without liability for so doing, may take possession of and use any of
Subdivider's materials, appliances, plant and other property that are at the
work site and are necessary to complete the Improvements.
(f) Subdivider hereby grants the City an easement over all lands Subdivider
owns within the Subdivision, for the purposes or all access, egress, and
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DOC #25176985 Page I 6 of 42
occupation required to complete the Work in the event that the City
exercises its right under this Agreement to do so. Such easement shall
terminate without any further action of either Party upon the completion of
all of Subdivider's obligations under this Agreement, including for avoidance
of doubt, obligations under Section 12.c.
(g) [lntentionally omitted.]
(h)In the event of a Default of Subdivider, Subdivider agrees to pay all costs and
expenses incurred by City in securing performance of those obligations,
including but not limited to fees and charges of architects, engineers,
attorneys and other professionals, and costs of suit and reasonable
attorneys' fees.
(i) City's failure to take enforcement action with respect to a Default of
Subdivider, or to declare a breach, shall not be construed as a waiver of that
default or breach or any subsequent default or breach by Subdivider.
16.SUBDMDER NOT AGENT OF CITY
Neither Subdivider nor any of Subdivider's agents or contractors are or shall be considered to be
agents of City in connection with the performance of Subdivider"s obligations under this
Agreement.
17. MAPS AND/OR IMPROVEMENT PLANS
Developer shall provide City with the following at the Developer's expense:
A. A scan in.pdf format and/or originals of all executed Improvement Plans, Storm
Water Management Plan Report & SWME Agreement, Final Map, Maintenance Agreement
(Exhibit D), and all other documentation deemed necessary by the City Engineer to
complete and facilitate City acceptance of the work.
18.SuBDMDER TO WARN PUBLIC
Until final acceptance of the Improvements, Subdivider shall give good and adequate warning to
the public of any dangerous condition of the Improvements, and shall take reasonable actions to
protect the public from such dangerous condition.
19.NOTICES
All notices, demands, requests or approvals to be given under this Agreement shall be given in
writing and conclusively shall be deemed served when delivered personally or on the second
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DOC #25176985 Page 17 of 42
business day after the deposit thereofin the United States Mail, postage prepaid, registered or
certified, addressed as hereinafter provided.
All notices, demands, requests, or approvals from Subdivider to City shall be addressed to City at:
City of Cupertino
10300 Torre Ave.
Cupertino CA 95014
Attention: Public Works Director/City Engineer
All notices, demands, requests, or approvals from City to Subdivider shall be addressed to
Subdivider at:
190 West St. James, LLC
21710 Stevens Creek Blvd., Suite 200
Cupertino, CA 95014
Attention: Kenneth S. Tersini
20.NO VESTING OF RIGHTS
Performance by Subdivider of this Agreement shall not be construed to vest Subdivider"s rights
with respect to any change in any zoning or building law or ordinance.
21.TIME IS OF THE ESSENCE
Time is of the essence in the performance of this agreement by subdivider.
22.NONDISCRIMINATION
Subdivider, its agents, employees, contractors and subcontractors shall not discriminate in any
way against any person on the basis of age, sex, race, color, religion, sexual orientation, actual or
perceived gender identity, disability, ethnicity, or national origin in connection with or related to
the performance of this Agreement.
23.GOVERNING LAW AND ATTORNEY FEES
This Agreement shall be interpreted under, and enforced by the laws of the State of California
excepting any choice of law rules which may direct the application of laws of another jurisdiction.
The Agreement and obligations of the parties are subject to all valid laws, orders, rules, and
regulations of the authorities having jurisdiction over this Agreement (or the successors of those
authorities). Any suits brought pursuant to this Agreement shall be filed with the courts of the
County of Santa Clara, State of California.
If City sues to compel Subdivider's performance of this Agreement, or to recover damages or costs
incurred in completing or maintaining the work on the Improvements, Subdivider agrees to pay all
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DOC #25176985 Page 18 of 42
attorneys" fees and other costs and expenses oflitigating incurred by the City, even if Subdivider
subsequently resumes and completes the work.
24.RELATIONSHIP OF PARTIES
Neither Subdivider nor any of its contractors, employees or agents shall be deemed to be agents
of the City in connection with the Performance of Subdivider"s obligations under this agreement.
25.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.
26. INTEGRATED AGREEMENT
This Agreement represents the full and complete understanding of every kind or nature
whatsoever between the parties hereto, and all preliminary negotiations and agreements of
whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be
held to vary the provisions hereof. Any modification of this Agreement will be effective only by
written execution signed by both City and Subdivider. All unchecked boxes do not apply to this
Agreement.
IN WITNESS WHEREOF, the Parties have caused this agreement to be executed by their respective,
duly authorized officers on the date listed above.
form:Ap o ed s
Christoph D. Jensen
City Attorney
CITY OF CUPERTINO:
y4)
Chad Mosley
AsSistant Director/City Engineer
Public Works
SUBDMDER:
190 West St. James, LLC, a California
Limited Liability Company
Kenneth S. Tersini
Manager
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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, accurag, or validity of that document.
State of California
(,O ,I. O( Santa Clara
On!J>VehAei /7, lbz,i beforeme, K'Slen SQuarc'a ,NotaryPublic,
(Here insert name and title ofthe officer)
personallyappeared (- (is:q' Iq;),r /'/-y- - I
who proved to me on the basis of satisfactory evidence to be the person(4 whose name@)_is/are subscribed to
the within inshument and acknowledged to me that i/she/they executed the same in :/her/their authoicd
capacity(ieTh), and that by §/her/their signature(,0 on the inshument the persoJ4), or the entity upon behalf of
which the persot$)' acted, executed the instnunent.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph
is tnie and correct.
a b a a & & M & A a a 4
A, KIRSTEN SQuARCIA, _ p Notary F'ublic - California
WITNESS my hand and officxal seal. gl' Santa Clara County t'_'s Commission # 2257322 -
4o ,/,+a,QA,,,' '-iiMyComm;Ex'paaire'fflso:_4':2o22i
SigmhireofNotaryPublica (J """""
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ADDITIONAL OPTIONAL INFORMATION
INSIRUCTIONS FOR COA4PLBTING TaHIS FORM
Any acknowledgment completed in Car@rnia must contain yerbiage exactly as
DESCRIPTION OF TaHE ATTACHED DO appears above in the notary secHon or a separate acbowledgmem form must be
properly completed and attached to that document. The only exception is if a
docurnem is to be recorded outside of CaQornta. In such imkances, any alternafive
(Title or descriptio n Or a ,,,hi doc ument) aCKnOWleagmen[ VerDlage aS m(JJ De prlnreCl On SuCn a aOCument SO lOrlg 12S the
verbiage does not require the notary to do sometMng that is i(legal for a notary in
Cal@rnia (i.e. cer%ing the authorized capacity of the si5pier). Pleme check the
(Titleordescriph0onofattacheddocutnentconhn'ued) aoaimenrcare_puyyorpropernoranaywaramganaartacnrnu)ormgrequrrea.
* State and County information must be the State and County where the document
Number ofPages - Document Date - signets) personally appeared before the notary public for acknowledgment.
ii Dateofnotmizationmustbethedatethatthesigner(s)personallyappearedwhich
must also be the saz date the acknowletlgment is completed.
(Additional information) ii The notary public must pit his or her natne as it appeam w'tbm his or her
commissionfollowedbyacommaandthaiyour title (notqpublic).
it Pit the name(s) of document signear(s) who personally appear at the time of
notmization.
CAPACIIY CLAIMED BY THE SIGNER ' Indicate the correct singular or plural forms by cmssing offincomect fomis (i.e.
€Individual(s) he/she/they-is/ge)orcirclingthecorrectforms.Failuretocorrectlyindiotethisinformation may lead to rejection of dociunent recording.
[] Corporate Officer * The notmy seal impresston must be clear and photographically reproducible.
hnpression must not cover text or lines. If seal impression smudges, re-seal if a
(Title) sufficient area pets, otherwise complete a difTerenl acknowledgment form.
@ Partner(s) * Signature of the notary public must match the signature on ffle with the office ofthe county clerk.
€ Attorney-in-Fact + Addjkional infortnation is not required but could help to ensure this
0 Trustee(s) acknowledgment is not misused or attached to a different document.
zither o:' h+dicatetitleortypeofattacheddocument,numberofpagesanddate.
- '/ in(11caTe me capaClT7 Clalnlea O!l [ntl Slgn(T. II me ciaitnea Capacr I!i a
corpomte officer, indicate the title (i.e. CEO, CFO, Secretmy),
* Securely attach this document to the signed documenf
C 2004-115 ProLlnk Signing Service. mc. - An Rlghti Raerved www.TheProLlnkcom - Na5onwide NotarySeivice
DOC #25176985 Page 'I 9 of 42
It--- -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, accurac)i, or validity of that document.
Il
i.
li State of Californiali
County of Sav'vtq (-\(4/"'%
On HcwHyr r)zoii beforeme, ":khruFcr(?:'eremdsenon'iar>meud(itl,;yOftoh7ouffi>er) Pt41:c ,NotatyPublic,
personally appeared Kcn n <-lh S. %z4(,1) "" ,
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who proved to me on the basis of satisfactory evidence to be the person(s) whose nam5Q@re subscribed to
the within instrument to me tha@lie/they executed the same i4er/their authorized
capacity(ies), and that signature(s) on the insh'ument the person(s), or & entity upon behalf of
and,yknowledged
beer/their a
whicli the person(s) actea';rxecuted the instrument.
} certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph
IS fflle and COITeCt & &. & * A a a a, @ , @,
4 4 ,...,""+, JENNIFERJODOIN I
=u TlotaryPubllc-California [
WITNESSmyhandandofficialseal. "' COmmlssl0n#2368,lsA"taClaraC"n' !)'-""yaa My Comm. Expires Aug 24, 20251"" ' "' 111ffl 'ffi
signatureh'% (NotarySeal)
* 4
ADDITIONAL OPTIONAL INFORMATION
INSTRUCTIONS FOR COMPLETING THIS FORM
Any acknowled5pnent crnnpleied in CaHforiiia must contain sierbiage exactly as
DESCRIPTION OF THE ATTACHED DOCUMENT appears abosie in rhe norary section or a separare acknoviledgment form must be
properly completed and auached to rhat documem. The only exception is if a
C %lti':.j.iescnE.:'[a!::c..enti ':,::=:,';.:,:",:,=',:';,:",',:4'a',;',,::z;':H:;="=;=;::l:::=:-:x:verbiage does nor require the notary lo do somelliing (hat is illegal for a notary in
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California (i.e. cert%ing the amhorized capacity of the signer). Please check xhe
Nunlber of Pages n Doc urnent D ate @ State and County information must be the State and County where the documentsigner(s) personally appeared before the notary public for acknowledgment.
* Date of notarization must be the date that the signer(s) personally appeared whicli
must also be the same date the acknowledgment is completed.
(Additional information) a The notary public must print his or her natne as it appears within his or her
commission followed by a comma and then your title (notary public).
* Print the name(s) of document signer(s) wlio personally appear at the lime of
notarization.
CAPACITY CLAIMBD BY THE SIGNER ' Indicate the COrreCt singular or plural forms ly crossing off incorrect forms (i.e.
€ Individual (s) he/sheAhey7 is /ate ) or circling the correct forms Failure to correctly indicate thisinformation may lead to rejection of document recording.
[1 Corporate Officer ii The notar5o seal impression must be ciear and photographically reproducible.
Imprcssion must not covcr tcxk orlines. If seal impression smudges, re-seal if a
(Title) sufficient area pemiits, otheniiiise complete a different acknowledgment form.
€ Partner(s) # Signature of the notaiy public must match the signature on file with the office of
the county clerk.
0 Attontey-tn-FaCt -> Additional information 18 not required bul could help to ensure this
[1 Trustee(s) acknowledgment is not misused Or attached to a different document.
€ ()t)ler A. Indicate title or type of attached document, number of pages and date.
r:a Indicate the capacity claimed by the signer. If the ciaimed capacity is a
corporate officer, indicate the title (i.e. CEO, CFO, Secretary).
s Securely attach this document to the signed document
C 2004-2015 PtiiLlnk Signing Service. Inc. - All Rights Restrved wivw TheP+iiLtco+n - Nationwide Nojary Semce
DOC #25176985 Page 20 of 42
Attach Notary acknowledgement for Subdivider's signatures:
Attachment:
Exhibit "A"- Schedule of Bonds, Fees, Deposits
Exhibit "B" - Dedication
Exhibit "C" - SWME
Exhibit "D" - Maintenance Agreement
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DOC #25176985 Page 22 of 42
Exhibit A
SCHEDULE OF BONDS, FEES, AND DEPOSITS
Street Improvement Category:
PARTA.
PART B.
PART C.
PART D.
PART E.
PART F.
PARTG.
PART H.
Faithful Performance Bond: Sl,237,900
Labor and Material Bond:51,237,900
Plan Check and Inspection Fee: S187,940 (Total, paid 560,000)
Transportation Impact Fee: S188,803 (Due at Building Permit per CMC14.02.040)
Storm Drainage Fee: S69,295.00
Storm Water Management Fee: 53,042.00
Map Checking Fee: !>11,527.00 (PAID)
Park Fee: 59,210,000.00
1402687.19
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DOC #25176985 Page 23 of 42
DEDICATION IN FEE
FOR ROADWAY PURPOSES
21271 Stevens Creek Boulevard, Cupertino, CA 95014
APN 326-27-042 & 043
190 West St. James, LLC, a California limited liability company, dedicates in fee to the CITY
OF CUPERTINO, a California municipal corporation, for public purposes including, but not
limited to roadway purposes, together with the right to construct, repair, operate, and maintain
any and all public utilities and improvements in, on, under, along and across the real property
which shall be or become necessary for preservation of the public safety, welfare or convenience,
the reai property described in Exhibit A and shown in Exhibit B, which is situated in the City of
Cupertino, County of Santa Clara, State of Ca]ifornia.
IN wtanqhss WHEREOF, executed this ;" day of O<Jr't-o-r , 2021.
190 West St. James, LLC:
I ",L ,7,-
Kenneth S. Tersini
Manager
City of Cupertino:
Roger Lee
Director of Public Works
(Notary acknowledgment to be attached)
DOC #25176985 Page 24 of 42
OCTOBER 18, 2021 JOB NO. 20-143
EXHIBIT "A"
LEGAL DESCRIPTION OF
ROADWAY DEDICATION
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE CITY OF CUPERTINO,
COUNTY OF SANTA CLARA, STATE OF CALIFORNIA DESCRIBED AS FOLLOWS:
BEING A PORTION OF PARCEL A AS SHOWN ON THAT CERTAIN DOCUMENT
ENTITLED "LOT LINE ADJUSTMENT", FILED FOR RECORD
20 AS DOCUMENT NO. , RECORDS OF SAID SANTA CLARA
COUNTY, HEREIN REFERRED TO AS "ROADWAY DEDICATION 'A-1' " AND MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
ROADWAY DEDICATION 'A-1'
BEGINNING AT THE SOUTHEASTERLY CORNER OF SAID PARCEL A, BEING A
POINT AT THE INTERSECTION OF THE NORTHERLY BOUNDARY OF STEVENS
CREEK BOULEVARD (PUBLIC STREET) AND THE EASTERLY BOUNDARY OF SAID
PARCEL A:
THENCE WESTERLY ALONG SAID NORTHERLY BOUNDARY NORTH 89o 15' 40"
WEST, A DISTANCE OF 129.78 FEET:
THENCE CONTINUING WESTERLY ALONG SAID NORTHERLY BOUNDARY NORTH
84o 03' 28" WEST, A DISTANCE OF 139.63 FEET TO THE BEGINNING OF A TANGENT
CURVE TO THE RIGHT HAVING A RADIUS OF 100.00 FEET:
THENCE WESTERLY ALONG SAID NORTHERLY BOUNDARY AND CURVE THROUGH
A CENTRAL ANGLE OF 7o 25' 37", AN ARC DISTANCE OF 12.96 FEET:
THENCE DEPARTING FROM SAID NORTHERLY BOUNDARY, SOUTH 86o 59' 38'
EAST, A DISTANCE OF 474.47 FEET TO THE BEGINNING OF A TANGENT CURVE TO
THE LEFT HAVING A RADIUS OF 983.00 FEET:
THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 02o 16'
02", AN ARC DISTANCE OF 38.90 FEET:
THENCE SOUTH 89o 15' 40" EAST, A DISTANCE OF 68.43 FEET TO A POINT ON SAID
EASTERLY BOUNDARY OF PARCEL A;
THENCE SOUTHERLY ALONG SAID EASTERLY BOUNDARY SOUTH 00o 54' 00"
WEST, A DISTANCE OF 7.00 FEET TO THE POINT OF BEGINNING 'A-1';
CONTAINING 1 ,664 SQUARE FEET (0.038 ACRES) OF LAND, MORE OR LESS;
1 0F 4
DOC #254 76985 Page 25 of 42
IN CONJUNCTION WITH THE ABOVE DESCRIBED EASEMENT, AN ADDITIONAL
AREA BEING A PORTION OF PARCEL A AS SHOWN ON SAID LOT LINE
ADJUSTMENT, HEREIN REFERRED TO "ROADWAY DEDICATION 'A-2' " AND
MORE PARTiCULARLY DESCRIBED AS FOLLOWS:
ROADWAY DEDICATION 'A-2'
BEGINNING AT THE NORTHEASTERLY CORNER OF SAID PARCEL A, BEING A
POINT AT THE INTERSECTION OF THE SOUTHERLY BOUNDARY OF MARY AVENUE
(PUBLIC STREET) AND THE EASTERLY BOUNDARY OF SAID PARCEL A:
THENCE DEPARTING FROM SAID SOUTHERLY BOUNDARY AND HEADING
SOUTHERLY ALONG SAID EASTERLY BOUNDARY, SOUTH 00" 54' 00" WEST, A
DISTANCE OF 12.00 FEET:
THENCE DEPARTING FROM SAID EASTERLY BOUNDARY, NORTH 89o1 1' 55" WEST,
A DISTANCE OF 77.B9 FEET TO A POINT ON SA!D SOUTHERLY BOUNDARY OF
MARY AVENUE;
THENCE ALONG SAID SOUTHERLY BOUNDARY, NORTH 00o 48' 05" EAST, A
DISTANCE OF 12.00 FEET:
THENCE CONTINUING ALONG SAID SOUTHERLY BOUNDARY, SOUTH 89o 11' 55"
EAST, A DISTANCE OF 77.91 FEET TO THE POINT OF BEGINNING 'A-2';
CONTAINING 935 SQUARE FEET (0.022 ACRES) OF LAND, MORE OR LESS;
IN CONJUNCTION WITH THE ABOVE DESCRIBED SEGMENT OF LAND, AN
ADDITIONAL AREA BEING A PORTION OF PARCEL B AS SHOWN ON SAID LOT
LINE ADJUSTMENT, HEREIN REFERRED TO "ROADWAY DEDICATION 'B-i' " AND
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
ROADWAY DEDICATION 'B-1'
BEGINNING AT THE SOUTHWESTERLY CORNER OF SAID PARCEL B, BEING A
POINT AT THE iNTERSECTION OF THE NORTHERLY BOUNDARY OF STEVENS
CREEK BOULEVARD (PUBLIC STREET) AND THE WESTERLY BOUNDARY OF SAID
PARCEL B;
THENCE DEPARTING FROM SAID NORTHERLY BOUNDARY AND ALONG SAID
WESTERLY BOUNDARY OF PARCEL B, NORTH 00o 54' 00" WEST, A DISTANCE OF
7.00 FEET:
THENCE DEPARTING FROM SAID WESTERLY BOUNDARY, SOUTH 89o 15' 40" EAST,
A DISTANCE OF 468.17 FEET TO THE BEGINNING OF A NON-TANGENT CURVE TO
THE LEFT HAVING A RADIUS OF 50.00 FEET:
2 0F 4
DOC #25176985 Page 26 of 42
THENCE EASTERLY ALONG SAID CURVE, FROM WHICH A RADIAL POINT BEARS
SOUTH 29o 56' 40" EAST, THROUGH A CENTRAL ANGLE OF 01o 18' 28", AN ARC
DISTANCE OF 1.14 FEET:
THENCE NORTH 00o 48' 05" EAST, A DISTANCE OF 18.42 FEET:
THENCE SOUTH 89o 15' 40" EAST, A DISTANCE OF 17.36 FEET TO THE BEGINNING
OF A NON-T ANGENT CURVE TO THE LEFT HAVING A RADIUS OF 50.00 FEET;
THENCE NORTHERLY ALONG SAID CURVE, FROM WHICH A RADIAL POINT BEARS
SOUTH 60o 35' 40" EAST, THROUGH A CENTRAL ANGLE OF 14o 32' 03", AND ARC
DISTANCE OF 12.68 FEET:
THENCE NORTH 00o 48' 05" EAST, A DIST ANCE OF 69.29 FEET TO THE BEGINNING
OF A TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 266.50 FEET;
THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL
ANGLE OF 21o 11' 42", AN ARC DISTANCE OF 98.58 FEET TO THE
BEGINNING OF A REVERSE CURVE TO THE RIGHT t-IAVING A RADIUS OF
58.50 FEET:
THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE
OF 08o 16' 41", AN ARC DISTANCE OF 8.45 FEET TO THE BEGINNING OF A
REVERSE CURVE TO THE LEFT HAVING A RADIUS OF 41 .50 FEET:
THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL
ANGLE OF llo 55' 22", AN ARC DISTANCE OF 8.64 FEET TO THE
BEGINNING OF A COMPOUND CURVE TO THE LEFT HAVING A RADIUS OF
268.00 FEET:
THENCE WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE
OF 65o 09' 38", AN ARC DISTANCE OF 304.79 FEET:
THENCE NORTH 89o II ' 55" WEST, A DISTANCE OF 91 .79 FEET TO A POINT ON THE
WESTERLY BOUNDARY OF SAID PARCEL B:
THENCE NORTHERLY ALONG SAID WESTERLY BOUNDARY NORTH 00o 54' go"
EAST, A DISTANCE OF 12.00 FEET TO A POINT ALONG THE SOUTHERLY
BOUNDARY OF MARY AVENUE (PUBLIC STREET);
THENCE EASTERLY ALONG SAID SOUTHERLY BOUNDARY SOUTH 89o 11 ' 55" EAST,
A DISTANCE OF 91.77 FEET'TO THE BEGINNING OF A TANGENT CURVE TO THE
RIGHT HAVING A RADIUS OF 280.00 FEET;
THENCE CONTINUING ALONG SAID BOUNDARY AND CURVE THROUGH A CENTRAL
ANGLE OF 90o 00' 00", AN ARC DISTANCE OF 439.82 FEET:
THENCE CONTINUING ALONG SAID BOUNDARY SOUTH 00o 48' 05" WEST, A
DIST ANCE OF 90.07 FEET:
3 0F4
DOC #25176985 Page 27 of 42
THENCE CONTINUING ALONG SAID BOUNDARY SOUTH 45" 46' 13" WEST, A
DISTANCE OF 24.05 FEET TO A POINT ON THE NORTHERLY BOUNDARY OF
STEVENS CREEK BOULEVARD (PUBLIC STREET);
THENCE WESTERLY ALONG SAID NORTHERLY BOUNDARY NORTH 89" 15' 40"
WEST, A DISTANCE OF 487.62 FEET TO THE POINT OF BEGINNING 'B-I':
CONT AIN!NG 11 ,608 SQUARE FEET (0.267 ACRES) OF LAND, MORE OR LESS;
BASIS OF BEARINGS: THE BEARING NORTH 89oll'55"WEST, BETWEEN TWO
FOUND MONUMENTS ON MARY AVENUE (PUBLIC STREET) AS SHOWN ON THAT
CERTAIN PARCEL MAP, FILED FOR RECORD IN BOOK 838 0F MAPS, AT PAGES 24-
25, OF RECORDS OF SAID SANTA CLARA COUNTY WAS USED AS THE BASIS OF
ALL BEARINGS SHOWN HEREON.
A PLAT ENTITLED "EXHIBIT B" IS ATTACHED HERETO AND MADE A PART HEREOF.
THIS DESCRIPTION AND THE ACCOMPANYING PLAT WERE PREPARED BY ME OR
PREPARED UNDER MY DIRECTION
ANDREW TURNER
P.L.S. 9104
CIVIL ENGINEERING ASSOCIATES, INC.
1 0/1 8/2021
DATE
4 0F4
EXHIBIT B
SURVEYOR'SSTATEMENT LEGEND
THIS SITE PLAN WAS PREPARED - - - - DISTINCTIVE BOUNDARY
BY ME OR UNIIQ MI_,,Y,_g90N.--.-,._ - - - - RIGHT-OF-WAY LINE- <"7=< - - - CENTER uxt.'_z_' -< "=-._ rvieaniir= I AT I air
o- j ""-'_ LA)J I IJ 11) LU I LIN(
A:7.I,,';'.';':R- 'Q,!,Tu@#, @ :lN%%v;n%Nl81,:.AN:T,'Hnffly'hch
DA'o &o'b' a""\'A%\ POB POINT OF BEGINNING
I I N0. 9104 1 I
l* /"/ REFERENCES
4n _,&/ [r] LLA - DOC. NO.
W [2] PARCEL MAP - 838 M 24-25
@\ S63'53'37'W(R) J
u"' " % R:500'0' ["] BASIS OF BEARINGS
'2"' XXS'72'o'0-1" N89"11'55'W$a,:, %X '- ' s=s+z.ooa(t) 253-41.'[2]
S " s A=6JO5'32' N8911 55 W- '- S c='ags.sy' 169.68' [1] R=280.00' [1]"' * X '- J i --' z -,_i '- i i b90'0000' 7' - !]_kE)14/[ 1=43g,B,'- % PUalC% "-.....ii,i,la> o_z*rinn'rq1
s6, \ ' " l} / //. 9i.77a -'%,(S % 11-Jltl.U}tJ nlLJ
>, I L2[1] / % , % b90'0000
Q u,%l p4H(,[1 A L3[1]} :,z' %% -486.95'S% C)- . i iia'ae,QJ%_aB'e74' DOC"Noa ayninlral;'oa""Th - s9ii00rJOriOa"7a'ooO[hl5ejf:
'%=-
0 % p _s l
5'4 %," \ . , - I # " FARcELB" ffl :'16U7U.:s u[.)2]L,l SOO54',OW,I DOC, NO, -
i 15o*36 [*] > N/I
l I l'l S45'46'l3'W
s=too.o_o'_H*r /%%., s.. 129.78'l qy.szo 24.-05;il1=
'L:bl2'%'4b31a6'--N1834"633:28""W-s-sN8-915WOW-6l740HBg"l-]5';-!---(PLalC STREET)
BASIS OF BEARINGS
THE BEARING OF N89all'55'W OF THE CENTERLINE OF MARY AWNUE AS SHOWN ON THAT CERTAIN PARCEL MAP
nLED FOR RECORD IN BOOK 838 0F MAPS AT PAGES 24-25, SANTA CLARA COUNTY RECORDS, AND AS FOUND
MONUMENTED, WAS TAKEN AS BASIS OF ALL BEARIN(,S FOR THIS PLAT.
EXHIBIT "B" - ROADWAY DEDICATION - EXISTING SITE
PLAT TO ACCOMPANY LEGAL DESCRIPTION
{" (l @ a f'T- -fl ea--f- - 51-- - - - e- iizaa BY: CH
IAI G. rat b*nnl ciiynio,n::,,-.hrw,lvuFp:nn::1,l*hJs:1 7Uffl 4$DA-TE, 10/t8/2021
181 Englnee5ing p-z==,=,-4cs41616niRiB5------SCALE: 1'=200' 10F 4
l, Associates '-' -- ---2, n.,K)B N0. 143
DOC #25176985 Page 28 of 42
EXHIBIT B
i S63"i3'37'W(R)S stmveyososs'rmuthr
'S, THIS SITE PLAN WAS PREPARED
I'\BllXX%, X -<_,, 7.7,_,,, ..M2',,W,!E5710N. m,,%>,Tu%,#,,Ao_
'g.l } 'y ANDREW TURNER, P.LS. I I N0. 9104 I- 1
'Sn.l S % l*l /*/
(ill S s- S 10/18/2021 l S / /
>-s s t.%._ s t,p,v t>/
:>,\ X%%'%"',@,, -DATED MfCAulfo" 6 'a, '
*s, a"' ""
Sl OH "
1 X@0,
l %<,, ' "'%i-. --- i
'<'u!,% '
1. 83, , .
l (,
s
'&
u)'%
4aS' %
%Q6 Gk -aO.
-% ;l FARCEL A 'BDOC. NO,-,c Th%.,l :!% Th
\ "
l
% -to'-n't al
b:rzs's-i'
,:":6870,7,0,78"-2.7!'S\6I.7a54%94'378'E
,oo.;,;120,03' N84:03")8"V;'
139.6J'
0
ROADWAY DEDICATION A-4 - , -,
1,664SF ' "'
'%, SE DETAIL A ' S89""E -:o S"
-nh(:>l"rrJ'=Q7:":5'&,6'3o'7'z'o'r <*z ,,i ': A,R:'_9"!.663'a800a204"3' l so" 0
(%%
6)
"2bd
%..
€)6,
+DElnT=A21LOlA (%,,O,,,Je,l,a-u0- %(%,,Q,N84n312,J-;sw: -113,/;6,43./, ill,! N:9=l3581l:0slwl2'ig.?!!
S QaE;4' 8al'[,4R0 (pusuc POB A-IJ
EXHIBIT "B" - ROADWAY DEDICATION
PLAT TO ACCOMPANY LEGAL DESCRIPTION
(" * a s l%f- jl e- -vT- - z _ 5j 61-- _ ei i aaaii i BY: CH
l?l FNI@I ullglnl,:--a+bormnlvgnDl:l,@:,+s-a-,g'lH Og, 10/18/2021
I Q I ( - - All-'u wri;iivy I lii&G allla u IJlj
l !ffi!k I Glj%41llel IH!j San Jose, CA 95110
I fflF'-4 I - o - _ " r (ural ari'<_ws SCALE: 1'=80' 20F_ 4
l, Associates "-"' " """,K)B N0. 2€'-1" 'o""o'
DOC #25'l 76985 Page 29 of 42
EXHIBIT B
SURVEYOR'S STATEMENT
15
% 44o'a
s d', _'l'ao_* L5 t
THIS SITE PLAN WAS PREPARED
B7._,,_____,__,_Y_,-"._,_Jl_RECnON. m,,s,Tu%:,#,,Ao_
tF ? ANDREW TURNER, P.L.S. I ( N0. 9104 1- l
l * /*/
I 10/18/2021 '!y / /
1 - - l'A'%, /}'r/nATFn s4: _,-,*y
ucA,lfp
i'=30' =LEGEND
- - - - DISTINCTIVE BOUNDARY
- - - - RIGHT-OF-WAY LINE
___ I r% rk I Tl- n I I k I r
- I - - - - LatN I CA Ll+Nt_
D A-')- J_Jjj)V AltDllr rVleTTklP I I'lT I Ikll_rlAJ 7%-&-ff/IIT/ 1171/1 €/L LAIJlllaU Ltll un(
i ""' ""' POB POINT OF BEGINNING
S8911'55'E i S8911'55'El S
_ ( 77.91' -.2 91.77' 1 %,laJl
_JII y
I ? J_'\ i "' ,, -%
' L2 '$isg*i"siaw'%hagiiossaw ' :yOo 'S,.
I zz.sg' H gi.zg' e_.4%00%%90. X:':;'BA-2J -"g ""l' "
h- - @,,%%'%%4 %
935SF < 1 t,,,A (%" 'OB" (XX%,%T'o, 0 o) l
r -<- 9 1
W u) 1
W p 1
"\
5 o R=41.50' %b11'55'22' s
ffi FARCEL B L=8-64'
R=58.50' \DOG. NO, , . l
hagaos'oo'w 132.18" 8164' l,- L=8.45'
:,:a -R,E2nl'6l6l.51402'._,/'
'-u) L"98.58' !JJa Ha) _
-""'a' "' -oOO "" 'aLO -? '- 'F Ch C)
0 ROADWAYDEDICATION B-1 ffi- '$5
o" _ 11,608 SF ) SEE DETAIL Bl z 8 o
0 I l/ (/)
C? s rl
X___ S8915'40'E 468.17' % f 7i,34
' % % # / _rl'-. * .>
-tPB A-I & B-' SA Qa'EAmUlffa) (PUBLIC STREET) "
hsgiso+oaw qy.s:zo -'$',?
EXHIBIT "B" - ROADWAY DEDICATION
FLAT TO ACCOMPANY LEGAL DESCRIPTION
f ii ii ffl /%l- -tj ea- -t- - -- _ e5J -- - - _ ei i my iaiiii -x BY: CH
Ipl F IV! ."" glnTn::4aoltvpl,'n'l,7Sa!ttbss:+a DATE, 10/18/2021
I l I € - - &V"v ""nvy i ---- ---- ---
I I &zH!41Hffgl IH!ffl4 Son Josei CA 95110
I ffi'a4 I - o - - " r= (inal Ael_lrrs,SCALE, 1'=80' _3 _OF 4
l, Associates ' ""' "" ""zo- SHT.NO.,K)B N0. 143
DOC #25176985 Page 30 of 42
SURVEYOR'S STATEMENT
THIS SIIE PIAN WAS PREPARED
m,_.JXRTU_JjDE7___,,__,_.,JRE91, ON. m,,,,T%,#%,,Ao_
ANDREW mssy, P.LS. I ( N0. 9104 l- l
l*l /*/
10/18/2021 / /
DATED M.c,lf
LINE TABLE alR'€ TABLE
LINE I BEARING LENGTH CURW I RADIUS DaTA LENGTH
Ll N73o34'06'E 17.84'Cl 50.00'118'28"1.14'
L!S8911'55'E 83.73'C2 50.00'1432'03"12.68'
L3 NOO'48'05'E 12.00'
L4 NOO'48'05'E 18.42'
L5 S8915'40"E 17.36'
EXHIBIT "B" - ROADWAY DEDICATION
PLAT TO ACCOMPANY LEGAL DESCRIPTION
r ii *g Qt.jl I:a--f....- _ 51---. _ e.,...x BY' Ct4
I?.l G. l- Vl@I !vlYll gl (jll ragaMr sa ,+h' rw,lvOJpl,t Il:lj:IM - .to aus I 1l'lj7V B DATE, 10/18/2021
IMI Engineering ;n-ao;';:cZ6sn6"=a-w
I N'-4 I _ - - 'r= (uuxl z-,*_tnst,SCALE: - 4 0F 4
ASSOCjaTeS "-' = a-,K)B N0, 20-143 "A"
DOC #25176985 Page 31 of 42
DOC #25176985 Page 32 of 42
Template Exhibit C
RECORDING REQUESliD B\
AA"D 1j"HEN RECORDED Th"lA[L TO:
City ofCupertino
City Clei'k's Office
10300 Tone Avenue
Cupertino, CA 95014-3202
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE !)6103
Space above this line for Recorder's use.
STORMWATER MANAGEMENT FACILITIES
OPERATION, MAINTENANCE AND EASEMENT AGREEMENT
Address
AJ'N
Tliis STORMWATER MANAGEMENT FACILITIES OPERATION, MAINTENANCE
AND EASEMENT AGREEMENT ("Agreement") is made and entered into this day of
, 20 , by , a
("Covenantor") and the City of Cupertino, a municipal corporation
("City"). Covenantor and City are referred to collectively lierein as the "Parties" and each
individually as a "Paity."
RECIT ALS:
This Agreement is made and entered into witli reference to the following facts:
A. Tl'ie City is authorized and required to regulate and control the disposition of stonn and
surface waters as set fortli in tlie City's Storinwater Pollution Prevention and Watershed
Protection Ordinance, Ordinance No. 1571, effective October 15, 2003 (as currently in effect axid
as it may liereafter be amended, tlie "Ordinance").
B. The Covenantor is tlie owner of a ceitaii'i tract or parcel of land designated as APN
and more particularly described in Exhibit A attached hereto
("Property").
C. Tlie Covenantor desires to construct certain improvements on tlie Property that may alter
existing stoimwater conditions on botli tlie Propeity and adjacent lands.
D. To minimize adverse in'ipacts due to these anticipated changes in existing stoim and
surface water flow conditions, tlie Covenantor is required by the City to build and maintain, at
Covenantor's expense, stonnwater management and trasli capture facilities ("Facilities") as
inore paiticularly described and shown in the Ston'nwater Management Plan prepared by
DOC #25176985 Page 33 of 42
Template Exhibit C
and dated , wliich plan, togetlier with any and all
amendments, including future amendments, tliereto (collectively, tlie "SWMP"), are on file with
tlie Public Works Department of tlie City of Cupertino, California, and are liereby incorporated
by reference.
E. Tlie City lias reviewed tlie SWMP, and subject to execution of this Agreement, lias
approved tlie SWMP.
AGREEMENT:
NOW, THEREFORE, in consideration of tlie benefits received and to be received by tlie
Covenantor, its successors and assigns, as a result of tlie City's approval of the SWMP, the
Parties hereby agree as follows:
1. Covenants Running Witli tlie Land; Propeity Sub,iect to Agreement. All of tl'ie Property
sliall be subject to tliis Agreement. Tlie Parties intend that tliis Agreement sliall run witl'i tlie
land, sliall be binding on Covenantor, its successors and assigns, and all paities having or
acquiring any rig]it, title or interest in tlie Property or any portion thereof, aiid tlieir respective
successors and assigns, and shall inure to the beiiefit of the City and its successors and assigns
regardless of whetlier City lias any ownership interest in the Property or any portion tl'iereof or
any propeity adjacent thereto. Every liinitation, easement, obligation, covenant, condition, and
restrictioxi contained l'iereiii sliall be deemed to be, and shall be consh'ued as a covenant ruiuiing
with tbe land, and in addition, sliall be construed as an equitable servitude, ei'iforceable by any
owner of any poition of the Property against any otlier owner, tenant or occupant of tlie Propeity
or any poition tliereof. Subject to tlie provisions of Section 9 below, eacli reference in this
Agreement to Covenantor shall mean Covenantor and its successors in interest to the Propeity or
any portion tliereof.
2. Responsibility for Installation, Operation and Maintenance. At its sole expense, tlie
Covenantor sliall construct, operate and perpetually maintain the Facilities in strict accordance
witli: (a) tlie Ordinance, (b) manufacturer's recommendations wliere applicable, (c) tl'ie SWA4P
and any amendments tliereto tliat have been approved by tlie City, and (d) all other applicable
federal, state and local laws, ordinances and regulations. Covenantor, 011 an annual basis, sliall
prepare and deliver to the City Public Works Director, a Maintenaiice Inspection Repoit in the
fonri attaclied liereto as Exliibit C or sucli otlier form as may be required by City from time to
time. n'ie annual Maintenance Inspection Report shall identify all completed inspection and
maintenance tasks for the reporting period and shall be submitted to tlie City in order to verify
tliat inspection and maintenance of tlie Facilities have been conducted as required by tliis
Agreement. The annual repoit sliall be submitted no later than October 15 of each year, ruider
penalty of perjury, to the City Public Works Director or sucli otlier member of tlie City staff as
directed by tlie Public Works Director. Covenantor shall provide in tlie annual report a record of
tlie volume of all accumulated sediment removed as a result of tlie treatmeiit measure(s).
Covenantor shall conduct a minimum of one annual inspection of tlie Facilities before the rainy
season; this inspection sliall occur between August 1st and September 30 each year. More
DOC #25176985 Page 34 of 42
Template Exhibit C
frequent inspections may be required to comply witli the maintenance standards. The results of
inspections sliall be recorded on tlie Maintenance Inspection Repoit.
3. Facility Modifications. At its sole expense, the Covenantor sliall make sucli clianges or
modifications to tlie Facilities as tlie City Engineer may reasonably detennine to be necessary or
desirable to ensure tliat tlie Facilities continue to operate as originally designed and approved.
Any clianges or modifications to tlie Facilities may be made only witli prior written authorization
by tlie City Engineer or liis or l'ier desigiiee.
4. Grant of Easement. Covenantor liereby grants to City a nonexclusive, access and
maintenance easement ("Easement") over tlie Facilities as depicted and described in Exhibit B
attached liereto and incorporated lierein ("Stormwater Facilities Area") for the prirpose of
perinitting tlie City, and its employees, agents, contractors, consultants, to inspect, monitor,
maintain, repair and replace tlie Facilities. Covenantor grants to tlie City tlie nonexclusive rigl'it
of ingress and egress to tlie Ston'nwater Facilities Area, from tlie existing sti'eets adjoining the
Property, over tlie existing drives, walkways and parkiiig areas located on tlie Propeity, for
purposes coiuiected witli any rigl'it under this Agreement or the perfon'nance of any obligations
required by tl'iis Agreement.
5. Facility Inspections by tlie City. At reasonable tii'nes, after not less than forty-eight (48)
liours' prior written notice, except in the event of an immediate tl'ireat to public healtli and safety
in wliicli case no prior notice sliall be required, and in a reasonable manner as provided in tlie
Ordinance, tlie City, its agents, employees, contractors, and consultants shall have tlie riglit of
ingress and egress to the Stonnwater Facilities Area for t]ie purpose of inspecting tlie Facilities
to ensure tliat tlie Facilities are being properly maintained, are continuiiig to perfon'n in an
adequate mai'uier (as reasonably determined by the City Engineer or liis or her designee), and are
in compliance witli tl'ie Ordinance, tlie SWMP and any amendments tliereto approved by the City
and all otlier applicable laws.
6. No Bairiers. Wliile this Agreement is in effect, Covenantor shall not erect, nor peri'nit to
be erected, any building or struchire of any kind within tlie Stormwater Facilities Area, nor sliall
Covenantor fill or excavate within tlie Ston'nwater Facilities Area witliout City's prior written
consent whicli shall not be unreasonably withheld, but may be conditioned upon sucli
requirements as City Engineer determines are reasonably necessai7 or desirable to ensure proper
functioning of tlie Facilities.
7.Default and Remedies. If following delivery of wiitten notice from City and the
expiration of a thirty (30) day cure period (except in tlie event of an immediate tluaeat to public
liealtli and safety in wliicli case Covenantor sliall coinrnence ai'id complete corrective action as
soon as possible following receipt of notice from tlie City), Covenantor fails to conect any defect
in tlie Facilities in accordance with tlie approved design standards, the SWMP, tlie Ordinance,
and all other applicable state, federal, and local laws, rules, and regulations, or Covenantor
otlierwise fails to comply with tlie maintenance and repair obligations set foitli in the SWA4P and
tliis Agreement, tlie City sl'iall liave tlie right upon delivery of foity-eiglit (48) liours' prior
DOC #25176985 Page 35 of 42
Template Exliibit C
written notice (except in tlie event of an inunediate tl'ireat to public liealth ai'id safety in wliich
case no notice sliall be required) to enter the Stormwater Facilities Area for the purposes of
maintaining and repairing tl'ie Facilities at Covenantor's expense, and Covenantor sliall be
obligated to reimburse City for the cost of all such work, including, without limitation, tbe cost
of City staff time, witliiii tliirty (30) days following City's delivery of an invoice therefor,
together witli documentation of City's costs and expenses incurred in comiection witli the
performance of such work. If sucli costs are not paid witliin tlie prescribed time period, the City
may aSsesS Covenantor tlie cost of the work, and said assessment sliall be a lien against tlie
Property or may be placed on the propeity tax bill and collected as ordinary taxes by the City. In
addition to tlie foregoing, the City may pursue any other remedies provided under law or in
equity, including witliout limitation, ex parte applications for temporary restraining orders,
preliminary injunctions and permanent injunctions enjoining any such violation or attempted
violation or default, an order for specific performance, civil and criminal penalties, and tlie
ren'iedies set foith in Sections 9.18.190, 9.18.230 and 9.18.250 of tlie Ordinance. All sucli
remedies shall be cumulative aiid not altemative.
8. To tlie fullest extent allowed by law, Covenantor shall indemnify and hold
liannless CITY, its City Council, boards and coiui'nissions, officers, officials, agei'its, employees,
servants, consultants and volunteers (hereinafter, "Indemnitees") from and agaii'ist any liability,
loss, damage, expense, and cost (including reasonable legal fees and costs of litigation or
arbitration), resulting from injury to or deatli of any person, damage to property, or liability for
otlier claims, stop notices, demands, causes of actions and actions, arising out of or in any way
related to the ownership, operation, use of t]ie area, maintenance, or failure to maintain, tlie
Facilities, or tlie Covenantor's perfonnance or nonperforinance of his/her duties under this
Agreement, or from negligent acts or omissions or willful misconduct of Covenantor, its agents,
employees, contractors, or subcontractors. Covenantor sliall, at liis/l'ier own cost and expense,
defend any and all claims, actions, suits or legal proceedings tliat may be brouglit agaiiist tlie
City or any of the Indeinnitees (witli council acceptable to City) in coruiection with this
Agreement or arising out of Covenantor's performance or nonperfomance of liis/her duties and
obligations liereunder, except to the extent any of tlie foregoing is caused by the negligence or
willfu] misconduct of tlie CITY or the CITY'S agents, employees and independent contractors,
9. Obligations and Responsibilities of Covenantor. Initially, the Cove'i'iantor named above
sliall be solely responsible for the perfonnance of tlie obligations required under this Agreement
and for tlie payment of any and all fees, fines, and penalties associated with such perfonnance or
failure to perform under this Agreement. Notwithstanding any provisions of tliis Agreement to
tlie contrary, upon tlie recordation of a deed or other instrument of sale, transfer or other
conveyance of fee simple title to the Propeity or any portion thereof (a "Transfer") to a third
party, the Covenantor shall be released of its obligations and responsibilities under tliis
Agreement accruiiig after the date of sucli Transfer to tlie extent sucli obligations and
responsibilities are applicable to tliat portion of tlie Property included in sucli Transfer.
10. Property Transfer. Nothing lierein sliall be construed to proliibit a transfer of tlie
Property or any part tliereof by tlie Covenantor to subsequent owners and assigns.
DOC #25176985 Page 36 of 42
Template Exhibit C
11. Teimiiiation and Release of Agreement. In tlie event that tlie City determines, in tlie
exercise of its sole discretion, at any 'Juture time tliat tlie Faci]ities are no longer required, then it
promptly sliall so notify the Covenantor or its successors and/or assigns in writing, and at tlie
written request of the Covenantor, tlie City sliall execute a tennination and release of this
Agreement which tlie Covenantor sliall cause to be recorded in the Official Records at
Covenantor's sole expense.
12.Miscellaneous.
12.1 Notices. Except as otlietawise specified lierein, all notices, demands, requests or
approvals to be sent pursuaxit to this Agreement shall be i'nade in writing, and sent to tlie Parties at
tlieir respective addresses specified below or to such otlier address as a Party may designate by
written notice delivered to the otlier Party in accordance witli tliis Section. All such notices shall
be sent by: (a) personal delivery, in wliicli case notice is effective upon delivery; (b) certified or
registered mail, return receipt requested, in wliich case notice shall be deemed delivered upon
receipt if delivery is confirmed by a return receipt; (c) nationally recognized oven'iiglit courier,
witli cliarges prepaid or cliarged to the sender's account, in wliich case notice is effective 011
delivery if delivetay is confiimed by tl'ie delivery service; or (d) postage prepaid registered or
certified mail, in wliidi case notice sliall be deemed delivered on tlie second business day after the
deposit tliereof with tlie U.S. Postal Service.
Cit5y:
City of Cupettino
10300 Torre Ave
Cupertino CA 95014
Attention: Public Works Director
Witli copy to:
City of Cupeitino
10300 Toire Ave
Cupertino CA 95014
Attention: City Attorney
Covenantor:
12.2 Attorneys' Fees. In the event tliat eitlier Paity institutes legal action or arbitration
DOC #25176985 Page 37 of 42
Template Exhibit C
against tlie otlier to intei'pret or enforce this Agreement, or to obtain damages for any alleged
breacl'i hereof, the prevailing Paity in sucli action or arbitration shall be entitled to reasonable
attoi-iieys' or arbitrators' fees in addition to all otlier recoverable costs, expenses and damages.
12.3 Governiiig Law; Venue. Tliis Agree'inent sliall, in all respects, be govetned,
construed, applied, and enforced in accordance witli the laws of the State of California witliout
reference to its clioice of laws provisions. Any dispute related to tlie interpretation or
enforcement of this Agreement sliall be lieard in courts liaving jurisdiction in Santa Clara
County, California.
12.4 Furtlier Assurances. City and Covenantor shall eacl'i execute, acknowledge and
deliver to tlie other sucli otlier documents and instruments, and take such otlier actions, as eitlier
shall reasonably request as may be necessary to fully effectuate the terms and provisions of tliis
Agreement.
12.5 Entire Agreement. Tliis Agreement, together with the SWMP, constitutes tlie
entire agreement of tlie Parties with respect to the subject matter contained lierein and supersedes
all prior wirittei'i or oral agreements with respect tl'iereto.
12.6 Severability. In the event any pait or provision of tliis Agreement sliall be
detenriined to be invalid or unenforceable under tlie laws of tl'ie State of California, the
remaining portions of tl'ffs Agreement tliat can be separated from tl'ie invalid or, unenforceable
provisions sliall, nevertheless, continue in full force and effect.
12.7 No Waiver. Any waiver by City of any term or provision of this Agreement must
be in writing. No waiver shall be implied from any delay or failure by City to take action on
any breacli or default liereunder or to pursue any remedy allowed under this Agreement or
applicable law. No failure or delay by City at any time to require strict perfonnance by
Covenantor of any provision of tliis Agreement or to exercise any election contained herein or
any riglit, power or remedy hereunder shall be construed as a waiver of any other provision or
any succeeding breacli of tlie same or any other provision liereof or a relinquisl'u'nent for tlie
future of sucli election.
12.8 Recordatioii; Ainendments. City, at Covenantor's expense, shall cause tliis
Agreement to be recorded in tlie Official Records of Santa Clara County, California ("Official
Records") promptly following execution liereof. Tliis Agreement may be amended in wliole or
in pait only by mutual written agreement. Any such amendment shall be recorded in the Official
Records,
12.9 Relationship of Parties. Neitl'ier Covenantor nor aiiy of its contractors, employees
or agents sliall be deemed to be agents of City in connection witli the perfomiance of
Covenantor's obligations under this Agreement. Notliing in tlffs Agreement is intended to or
shall establish tlie Parties as partners, co-venturers, or principal and agent witli one anotlier. City
neitlier rindertakes nor assumes any responsibility or duty to Covenantor (except as expressly
DOC #25176985 Page 38 of 42
Template Exhibit C
provided in tliis Agreement) or to any third party witli respect to tlie Facilities.
12.10 Headings; Construction; Statutory References. Tl'ie lieadings of tl'ie sections and
paragraplis of tl'iis Agreement are for convenience only and sliall not be used to iiiteiliret tl'iis
Agreement. Tliis Agreement is tlie product of negotiation between tlie Parties. Tlie language of
this Agreement shall be construed as a wliole according to its fair meaning and not strictly for or
against any Paity. Any rule of construction to tlie effect that ambiguities are to be resolved
against tlie draftiiig pataty sball not apply in interpreting this Agreement. All references in this
Agreement to particular statutes, regulations, ordinances or resolutions of tl'ie United States, tl'ie
State of Califot-nia, or tlie City of Cupertino sliall be deemed to include the same statute,
regulation, ordinance or resolution as liereafter amended or renumbered, or if repealed, to such
other provisions as may thereafter govem tlie same subject. The recitals above and exl'iibits
attaclied liereto are a substantive pait of this Agreement and are l'iereby incorporated lierein.
12.11 Pennits and Licenses; Compliance witli Law. Covei'iai'itor, at its expense, shall
comply with all applicable legal requirements, including all federal, state, and local laws and
regulations (including City ordinances, regulations and resolutions, and requirements of other
agencies with jurisdiction), wltetber or not said laws or regulations are expressly stated in this
Agreement, and obtain and maiiitaiii all necessaiy petamits and licenses required in order to own,
operate and maintain the Facilities.
12. 12 Liens. Covenantor sliall pay, wlien due, all persons furnisliing labor or materials in
cotuiection witli any work to be perfonned by or on belialf of Covenantor related to tlie Facilities,
and sliall keep City's iiiterests in tlie Storinwater Facilities Area free and clear of any related
meclianics' liens.
12.13 Joint and Several Liability. If Covenantor consists of more than one person or
entity, tlie obligations of such persons and entities sliall be joint and several.
12.14 Coui'iterparts. Tliis Agreement may be executed in one or more counterparts, eacli
of wliicli sl'iall be deemed to be an original, and all of whicli taken together sliall constitute one and
tl'ie same instrument.
SIGNATURES ON FOLLOWING PAGE(S)
DOC #25176985 Page 39 or 42
Template ExhibitC
IN WITaNESS WHEREOF, tlie Parties liave executed tliis Agreement as of tl'ie date first
above writtei'i.
COVENANTOR:
By:
Name:
Title:
(Notaty ac7cnowledgpnent to be attached)
CITY:
CITY OF C{)PERTINO, a municipal corporation
BY:
Name:
Title:
(Notaiy acbnowledgment to be attaclied)
ATTEST:
, City Clerk
APPROVED AS TO FORM:
Cl'iristopher D. Jensen
City Attoi'ney
OAK #4824-0168-6049 v4
DOC #25176985 Page 40 of 42
Te'inplate Attachment D
RECORDED AT THE REQtJEST OF
And
WHEN RECORDED RETURN TO:
SPACE ABOVE FOR RECORDER'S USE ONLY
MAINTENANCE AGREEMENT
APN
THIS MAINTENANCE AGREEMENT ("Agreement") is made and entered into this
dayof 20 . by , ("Declarant"), and the City of
Cupertino ("City").
RECIT ALS:
The following recitals are a substantive portion of this- Agreement:
A. The real property and improvements that comprise is located at
within the City of Cupertino ("City"), County of Santa Clara, State of
Califoniia.
B. As set forth , the provisions of this Agreement are intended to and shall nin with the
Project and be binding upon all owners, successors and assigns of the Project, or any portion.
C. The purpose of this Agreement is to allocate the costs of maintenance, repair and
replacement between Declarant and the City of certain improvements, including landscaping, that
is situated on real property owned by City along in front of the Project, and
to establish certain criteria and procedures for the accomplishment of maintenance, repair and
replacement.
NOW, THEREFORE the parties hereto agree as follows:
1. Covenants Running with the Land; Property Subject to Agreement: All of the real
property described in Exhibit "A" shall be subject to this Agreement. It is intended that the
provisions of this Agreement shall run with the land and shall be binding on all parties having or
acquiring any right, title or interest in the real properly described in Exhibit "A" or any portion
and shall be for the benefit of each owner of any of the parcels or any portion of the property and
shall inure to the bei'iefit of and be binding upon each successor in interest of the owners. Eacli
of the limitations, easements, obligations, covenants, conditions, and restrictions contained herein
shall be deemed to be, and shall be construed as equitable servitudes, enforceable by any of the
owners of any of the property subject to this Agreement against any other Owner, tenant or
occupant of the property, or any portion.
1
DOC #25176985 Page 41 of 42
Template Attachmei'it D
2. Responsibility for Cost of Repair, Replacement and Maintenance: Declaraiit, or its
successor in interest, shall, at its sole cost and expense, maintain, repair, replace, remove and
keep in excellent, like new condition all improvements, street trees, paver blocks, landscaping,
and in'igation system located on tlie poition of tlie City's property tliat abuts aiid fronts the Project
("tl'ie Frontage Area of tlie Project") along to back of curb line, excepting tlierefrom
tlie staiidard public sidewalk abutting the property line of the Project wliicli sl'iall remain the
maintenance responsibility of the City. Exl'iibit "B" shows the poi'tion of tlie City's property for
whicli Declarant is responsible for maintenance hereunder.
3. Defiintions of Repair, Replacement and Maintenance: Tlie repair, replacement aiid
maintenance to be undertaken aiid perfoitned under this Agreement sl'iall include all work
necessary to maintain the Frontage Area of the Project described in paragrapl'i2 and delineated on
Exhibit "B" in excellent, like new and useable condition under all weather conditions. Tlie
Frontage Area of the Project sball be maintained to the standards, specifications and condition to
wliicli, at a minimum, they were oiiginally constructed as evidenced by plans and specifications
011 file with tlie City (if Cupeitino aiid/or provided to the Declarant. The improven'ients shall be
maintained to a l'iigli standard tliat is comparable to otlier improvements at similar high quality
developmei'its in the City ai'id along Steven Creek Boulevard and Mary Avenue. To accomplisli
the maintenance, Declarant sliall either provide licensed, qrialified personnel to perfonn the
maintenance work or contract with licensed, qualified companies for tliis, and any other items
necessary to comply with tlie requirements of tl'ffs Agreement.
4. Decisions Regarding Peiformance of this Agreement: All decisions regarding the need
for maintenance, the implementation, the removal, and any paiticular other matters relating to the
Frontage Area of the Project sl'iall be detei'mined by tlie City.
5. To tl'ie fiillest extent allowed by law, Declaraiit shall indennufy and hold
l'iann'iless CITY, its City Council, boards aiid commissions, officers, officials, agents, employees,
set-vants, consultants and volunteers (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 propem), or liability for
otlier claims, stop notices, demands, causes of actions and actions, arising out of or in aiiy way
pettaining to, or related to the use and landscape maintenance by Declarai'it or Declarant's
employees, officers, officials, agents or independent contractors of tlie Frontage Area of tl'ie
Project described in paragrapli 2 and delineated on Exliibit "B", or from negligent acts or
omissioi'is or willful misconduct of Declarant, its agents, employees, contractors, or
subcontractors. Declarant shall, at his/l'ier own cost aiid expense, defend any and all claims,
actions, suits or legal proceedings tliat n'iay be brought against tlie City or any of tl'ie Indemnitees
(witb council acceptable to City) in connection with this Agreement or arising out of Declarant's
perfoimance or noxiperfoimaiice of bis/l'ier duties and obligations liereunder, except to tl'ie extent
any of the foregoing is caused by tl'ie negligence or willful misconduct of the CITY or the
CITY'S agents, employees and independent contractors.
6. Insurance Requirements: Declarant sliall not commence work under this Agreement until
it lias obtained all insurance required. Declarant shall maintain Wo.i-ker's Compensation
Insurai'ice, and if applicable sl'iall also require all subcontractors to provide Worker's
Compensation Insurance. Declarant shall maintain Compreliensive General Liability in aii
amount of not less than $1,000,000.00
7. Attorney's Fees: Ill tlie event that aiiy parly institutes legal action or arbitration against
tl'ie other to interpret or enforce tlffs Agreement, or to obtain damages for any alleged breacli, the
2
DOC #25176985 Page 42 of 42
Template Attaclu'nent D
prevailing party in tlie action or arbitration sliall be entitled to reasonable attorneys' or arbitrators'
fees in addition to all otlier recoverable costs, expenses aiid damages.
8. Fuither Documents: Tlie parties covenant and agree tliat they sliall execute fiiither
docunients and inshuctions as shall be necessaiy to fully effectuate the terms and provisions of
this Agi'eement.
9. Entire .%reement: This Agreement constitutes tl'ie entire agreement of the paities witl'i
respect to tlie subject matter contained herein and supersedes all prior agreements, wl'ietl'ier
written or oral. There are no representations, agreements, ai'rangements or undertakings, oral or
written, whicli are not fully expressed herein.
10. In tlie event any pait or provision of this Agreement sliall be determined to
be invalid or unenforceable under the laws of the State of Califonua, the remaiiig portions of
this Agreement wlffdx cai'i be separated from the invalid, unenforceable provisions sliall,
nevertlieless, continue in full force and effect.
11. No Waiver: The waiver of any covenant contained lierein shall not be deemed to
be a continuing waiver of the same or any other covenant contained lierein.
12. Recordation: It is anticipated that this Agreement sliall be recorded and shall be executed
and acknowledged in proper recordable foi'm.
13. Amendtnent: Tliis Agreement may be ainended in whole or in part only by mutual
wxitten agreement. Any amendment sliall be recorded in Saiita Clara County, Califonffa. In the
event any conflict arises between the provisions of any such amendment and any of the
provisions of ai'iy earlier document or documents, the most recently duly executed and recorded
amendment shall be controlling.
Executed the day and year first above written.
DECLARANT:
BY:(notary acknowledgement attached)
CITY OF CUPERTINO
BY:
Name:
Title:
Approved as to Form
Christoplier D. Jensen
City Attomey
3
RECORDING REQUESTED BY:
City of Cupertino
WHEN RECORDED, MAIL TO:
RECORDED
ELECTRONICALLY
City Clerk's Office
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014-3255
ORfG NAL
(SPACE ABOVE THIS tINE FOR RECORDER'S USE)
NO FEE IN ACCORDANCE
WITH GOV. CODE 27383
SUBDIVISION IMPROVEMENT AGREEMENT
21271 Stevens Creek Boulevard, Cupertino, CA 95014
APN: 326-27-042 & 326-27-043
Original
0 Conformed Copy
City of Cupertino
SUBDMSION IMPROVEMENT AGREEMENT
21267 & 21269 Stevens Creek Blvd., Cupertino, CA 95014
APNs: 326-27-042 and 326-27-043
This agreement ("Agreement") is made and entered into this u' day of d, 2021, by
and between the City OF CUPERTINO, a municipal corporation of the State of California, ("City"),
and,190 West St. James, LLC, a California Limited Liability Company ("Subdivider") for a three-lot
mixed-use subdivision located at 21267 & 21269 Stevens Creek Blvd., Cupertino, CA (APNs 326-
27-042 and 326-27-043)
RECIT ALS
1. Pursuant to the Subdivision Map Act of the State of California and the City's local
ordinances and regulations relating to subdivision maps, Subdivider has presented to the City for
approval a final subdivision map, Tract No. 10579 (the "Map") for the subdivision of certain real
property in the City of Cupertino, designated as Final Map for a Three-Lot Subdivision and 88
condominium units for Parcel A at 21269 Stevens Creek Blvd. (the "Subdivision").
2. Subdivider has prepared and City has approved the following plans and related
specifications (the "Improvement Plans") for construction, installation and completion of certain
public improvements in connection with the Subdivision (the "Improvements). The Improvement
Plans titled "Off-Site Improvement Plans for Westport, Cupertino," prepared by Kimley Horn and
dated October 20, 2021 are on file in the City's Department of Public Works and are incorporated
into this Agreement by this reference.
3. Subdivider has also offered for dedication to City certain streets, ways and easements
delineated on the Map (the "Dedications").
4. On po\,e.kv k, :2o;21, the City Council approved the Map and offers of dedication
shown on the Map, conditioned on Subdivider entering into this Agreement to construct and
complete the Improvements.
NOW, THEREFORE, in consideration of City"s approval of the Map, and in order to ensure
satisfactory performance by Subdivider of its obligations under the Subdivision Map Act and the
Cupertino Municipal Code, City and Subdivider agree as follows:
1.SUBDMDER'S OBLIGATION TO CONSTRUCT IMPROVEMENTS
(a)Completion oflmprovements. Subdivider, at its own expense, and in
compliance with all provisions of the Subdivision Map Act, the Cupertino
Municipal Code, the Map and any amendments thereto, and other
applicable laws, shall perform the furnishing, installation, and construction
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of all required Improvements in conformance with the Improvement Plans
("the Work"). The decision of the City Engineer shall be final as to whether
any material or workmanship meets the applicable plans, specifications, and
standards as set forth herein and in the Improvement Plans.
(b)Compliance with applicable laws and rules. Subdivider shall construct the
Improvements in accordance with the most current applicable standards
and specifications of the Department of Public Works, the State of California
including without limitation the California Department of Transportation
(collectively the "State Specifications"), and in accordance with the
specifications of the Cupertino Sanitary District where applicable. Wherever
the words "State" or "California Division of Highways" are mentioned in the
State Specifications, it shall be considered as referring to the City of
Cupertino; also wherever the "Director" or "Director of Public Works" is
mentioned, it shall be considered as referring to the City Engineer. In case of
conflict between the State Specifications and the specifications of the City,
and/or the Cupertino Sanitary District, the specifications of the City and/or
the Cupertino Sanitary District shall take precedence over and be used in
lieu of such conflicting portions, unless otherwise approved by the City
Engineer.
Repair and replacement of damaged public facilities. Subdivider shall, at its
own expense, repair or replace all public improvements, public utility
facilities, surveying monuments and other public facilities that are destroyed
or damaged as a result of the Work. Subdivider shall promptly notify the City
Engineer of such damage and shall obtain the City Engineer's approval of all
repair and replacement of damaged facilities.
(d)Subdivider"s responsibility until City's acceptance. Until City accepts the
Improvements, Subdivider shall be responsible for the care and
maintenance of such Improvements and shall bear all risks of loss or damage
to the Improvements. City shall not have any liability for any accident, loss
or damage to the Improvements prior to their completion and acceptance
by City. City's acceptance of the Improvements shall not constitute a waiver
of any defects in the Improvements or Subdivider's obligation to repair such
defects as provided in Section 8 of this Agreement.
(e)Time forinstallation of Improvements. Subdivider shall install and complete
the Improvements within eighteen (18) months from the date of execution
of this Agreement, or such longer period as may be specifically authorized in
writing by the City Engineer pursuant to section I(f) of this Agreement. In
the event the Subdivider fails or refuses to complete the Work within the
specified period of time, then, following compliance with the default
provisions of Section 15 hereof, the City is hereby authorized to complete
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the Work in accordance with the Improvement Plans and all applicable
standards, subject to changes that the City determines in its sole discretion
are necessary. In the event the City completes the Work, the City may
recover all costs incurred thereby from the Subdivider or, pursuant to bonds
posted as set out in Section 5 below, the Subdivider"s surety, or both. No
final inspection shall be granted or street improvements shall not be
accepted unless all the requirements for safety purposes are installed, such
as sidewalks, handicap ramps, street lights, etc.
Time extensions. The City Engineer, in his or her reasonable discretion, may
approve, in writing, a request for extension of the time required for the
Work upon a showing of good cause by the Subdivider. Good cause shall
include, without limitation, the occurrence of any of the events of Force
Majeure as defined herein. If the Force Majeure delay exceeds three
months, then in approving a request for time extension, the City Engineer
may impose reasonable related conditions, such as requiring Subdivider to
furnish new or modified improvement security guaranteeing performance of
this Agreement, as extended, in an increased amount necessary to
compensate for any projected increase in the estimated total cost of
Improvements, as determined by the City Engineer.
Force Majeure. Whenever a period of time is herein prescribed for action to
be taken by either party, the party taking the action shall not be liable or
responsible for, and therefore shall be excluded from the computation of
any such period of time, any delays due to strikes; riots; acts of God;
shortages of labor or materials; terrorist activities; acts of war; laws,
restrictions, ordinances, orders, regulations, directions, rules, requirements,
controls and other measures issued, enacted or promulgated by
governmental or quasi-governmental authorities in an effort to protect
public health and safety, including without limitation shelter-in-place, safer-
at-home, safe distancing and similar orders; or any other causes of any kind
whatsoever which are beyond the control of such acting party, and which in
any of such events, cannot be overcome by the commercially reasonable
efforts of the acting party ("Force Majeure").
(h)Permits. Subdivider shall, at its own expense, obtain, and comply with the
conditions of all necessary permits and licenses for the construction of the
Improvements and give all necessary notices and pay all fees and taxes
required by law.
DEDICATION OF EASEMENTS OR RIGHTS OF WAY
(a) On the face of the Final Map, Developer irrevocably offers to the City (a) in
fee the real property referenced on the Final Map (the "Rights of Way"), to
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be conveyed by an instrument in the form shown in Exhibit B ("the
Dedication") and (b) the following easements, as shown on the Final Map:
o Emergency Access Easements, which shall be offered and
granted solely on the face of the Final Map;
o Public Access Easements, which shall be offered and granted
solely on the face of the Final Map;
o Pedestrian and Bicycle Access Easements, which shall be
offered and granted solely on the face of the Final Map;
o Sanitary Sewer Easements, which shall be offered and
granted solely on the face of the Final Map;
o Public Service Easements, which shall be offered and granted
solely on the face of the Final Map.
o Storm Water Management Easements, which shall be granted
via the Stormwater Management Facilities Operations, Maintenance
and Easement Agreement substantially in the form of Exhibit C ("the
SWM E");
(b) Prior to Final Map recordation, Developer shall deliver to the City for
recordation the Dedication along with such other executed conveyances,
reconveyances of security instruments, and other instruments necessary to
convey clear title as herein required. Prior to the City Engineer's acceptance
of Improvements pursuant to Section 3.5 below, Developer shall deliver to
the City for recordation the SWME. Developer, at Developer's sole cost and
expense, shall provide to City prior to Final Map recordation a preliminary
title report issued by a title insurance company for each Right of Way and
easement offered on the Final Map.
INSPECTION AND FINAL ACCEPTANCE
(a) Subdivider shall at all times maintain proper facilities and safe access for
inspection of the Improvements by the City Engineer, or his/her designee.
(b)Upon completion of the Improvements in compliance with the Improvement
Plans and all applicable standards, the City Engineer or, for facilities to be
accepted by the appropriate public utility companies, the utility company's
designee, shall perform a final inspection to determine the completeness of
the Improvements. If the City Engineer and/or the public utility company
designee determines the Improvements are complete and meet all
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applicable standards and specifications, he or she shall accept the
Improvements on the City's behalf. If requested by Developer, the City may
consider acceptance of a portion of the Improvements as recommended by
the City Engineer pursuant to City Code Section 18.32.410. After
acceptance, the City Clerk shall record a Notice of Completion pursuant to
Cupertino City Code section 18.32.400.
(c) Subdivider shall bear all costs ofinspection and certification for acceptance.
Acceptance by the City Engineer and/or public utility company designee
shall not constitute a waiver by the City and/or the public utility company of
any defects in the Improvements.
4.GROUNDWATER RIGHTS
Subdivider, when requested by the City, shall quitclaim all his/her rights and interests in, and shall
grant to City authorization to extract water from the underground strata lying beneath said
project. Subdivider agrees to execute a "Quitclaim Deed and Authorization" regarding such rights,
in favor of City upon such request.
5.SECURITY
(a) Required security. Prior to execution of this Agreement, Subdivider shall
provide the following security to City in one of the forms set out in Section
5.b below.
(1) Faithful performance. Security for faithful performance of this
Agreement in the amount set forth in Part A of Exhibit A.
(2) Labor and materials. Security for labor and materials in the amount
set forth in Part B of Exhibit A.
(b)Form of Security. Subdivider shall provide as security, bonds executed by a
surety company authorized to transact a surety business in the State of
California and approved by the City as to sufficiency. In the event that the
Subdivider shall fail to faithfully perform the covenants and conditions of
this Agreement, or to make any payment, or any dedication of land, or any
improvements herein required, the City shall call on the surety to perform
this Agreement or otherwise indemnify the City for the Subdivider's failure
to do so.
In lieu of a surety bond, the Subdivider may, with the City's consent, which
the City may grant or withhold in its sole and absolute discretion, elect to
secure its performance of 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
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acceptable to the City and meeting the requirements of Government Code
Section 66499 (a) or (b). The amount of said cash, checks, certificate of
deposit, or instrument of credit shall be as Subdivider set forth in Parts A
and/or B of Exhibit A. In the event that the Subdivider shall fail to faithfully
perform the covenants and conditions of this Agreement, or to make any
payment, or any dedication of land, or any improvements herein required,
the City may apply the proceeds of said security thereto.
(c) Release of security. Security shall be released as follows:
(1)Upon the recordation of a Notice of Completion for the
Infrastructure in accordance with Section 3(b), 90 percent of the
faithful performance security shall be released. The Security
remaining following such release is referred to herein as the
"Remaining Security.".
(2)Release of the remaining 10 percent of the faithful performance
security at one year from acceptance, or if the City issues a written
notice or notices of defect pursuant to Section 8, one year after all
such defects have been corrected, provided that prior to the release
of the remaining amount the Director of Public Works shall have
certified that no claims regarding the workmanship or quality of the
Infrastructure have been filed against the City, all such claims have
been satisfied, withdrawn, or otherwise secured by bond or other
security approved by the City Engineer.
(3)Release of the entire labor and material security at six months from
acceptance, or if the City issues a written notice or notices of defect
pursuant to Section 8, six months after all such defects have been
corrected, provided that prior to the release of the security, the
Director of Public Works shall have certified that no claims by any
contractor, subcontractor or person furnishing labor, materials or
equipment for the Infrastructure has been filed against the City. In
the event that claims have been filed, the land and materials security
may 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, plus an amount reasonably determined by the
City Engineer to be required to assure the performance of any other
obligations secured by the security. The balance of the security shall
be released upon settlement or release of all claims and obligations
for which the security was given.
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PAYMENT OF REQUIRED FEES
(a)Permits and licenses. Subdivider shall, at its sole expense, obtain all
necessary permits and licenses for the construction and installation of the
Improvements, give all necessary notices, and pay all fees required by City
ordinance, including but not limited to the fees described in this Agreement,
and all taxes required by law.
(b)F. The Parties acknowledge that as a precondition to the execution of
this Agreement, Subdivider has paid or will pay such at the time required
under the Cupertino Municipal Code and/or City Council Resolution 20-106,
fees in the amounts set forth in Exhibit A, including but not limited to the
following:
(1)Plan Check & Inspection and Miscellaneous Fees. Subdivider shall pay
all fees as set by the current adopted fee schedule at the time of
payment, prior to execution of this Agreement. Should construction
costs vary materially from the estimate from which this sum is
calculated, the City Engineer shall notify Subdivider of any additional
sum due and owing as a result thereof.
(2)Storm Drainage Fee. Subdivider shall deposit with the City, prior to
execution of this Agreement, a storm drainage charge as set by the
current adopted fee schedule at the time of payment in connection
with the said Project in accordance with the requirements
established in Resolution 4422, March 21, 1977, and as subsequently
amended.
(3)Map Checking Fee. Subdivider shall deposit with City, prior to
execution of this Agreement, for office checking of final map and
field checking of street monuments, in compliance with Section 4:1
of Ordinance No. 47 (Revised 12/04/61) of City, and per the City's
adopted fee schedule at the time of fee payment.
(4)Park Fee. Subdivider shall pay, by the earliest of December 31, 2021
and the recordation of first conveyance of any portion of the any lot
in the Subdivision from Subdivider to any other party, pursuant to
the City Council resolution approving this Agreement. Park fees are
calculated in accordance with the action originally adopted by the
City Council on March 19, 1991 and Chapter 14.05 or Section
18.24.030 of the Cupertino Municipal Code and as subsequently
amended, as set out in the City's adopted fee schedule at the time of
fee payment.
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(5)Transportation Impact Fee. Subdivider shall pay such fees set out in
the City's adopted fee schedule at the time of fee payment, prior to
issuance of the first building permit for development within the
subdivision, as is required under Chapter 14.02 of the Cupertino
Municipal Code, and as subsequently amended.
STREET TREE INST ALLATION
Subdivider shall, plant and maintain street trees in conformance with the standards of the City of
Cupertino. The variety, number and location of trees shall conform to Cupertino Ordinance no.
125 and will be subject the prior approval of the Director of Public Works.
MAINTENANCE AND WARRANTY
(a)Warranty period. Subdivider guarantees and warrants the Improvements to
be accepted by the City and agrees to remedy any defects, damages, or
imperfections in the Improvements arising from faulty or defective materials
or construction of the Improvements for a period of one (1) year after City's
acceptance of the Improvements. Subdivider"s obligation under this section
shall include the repair, replacement, or reconstruction of all irrigation
systems and all trees, shrubs, ground cover and landscaping for the required
one-year period.
(b)Warranty repairs and replacements. If, within the warranty period, the
Improvements to be accepted by the City or any part of the Improvements
to be accepted by the City fail to fulfill any of the requirements of this
Agreement or the Improvement Plans, Subdivider shall repair, replace or
reconstruct any defective or otherwise unsatisfactory parts of the
Improvements without delay and at no cost to City. If (a) Subdivider fails to
commence repairs within thirty (30) days of the date of mailed written
notice from City, or (b) City determines that public safety requires repair
before Subdivider can be notified, City may, at its sole option, perform the
required repair itself. Subdivider agrees to pay the cost of any repairs City
performs pursuant to this agreement and City may, at its sole option,
recover that cost through the security provided under this Agreement and,
as to any deficiency after the application of the security, as a lien against
Subdivider"s property within the Subdivision.
SANIT ARY DISTRICT
Subdivider shall file with the City, upon execution of this Agreement, a letter from the Cupertino
Sanitary District stating that the Subdivider has submitted plans for review by the District and that
sanitary sewer capacity is available to serve all lots within the Project.
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10.GOVERNMENT COSTS
Subdivider shall file with the City, upon execution of this Agreement, substantial evidence that all
provisions of Section 66493, Article 8, Chapter 4 of the Government Code, pertaining to special
assessments or bonds, have been complied with.
11.UTILITIES
Subdivider shall pay to Pacific Gas and Electric Company, AT&T, and/or appropriate utility
companies, all fees required for installation of overhead and/or underground services to said
property and all fees required for undergrounding as provided in Ordinance No. 331, or
subsequently adopted ordinances of City or regulations of the appropriate utilities, when the
Subdivider is notified by either the City Engineer, Pacific Gas and Electric Company, AT&T, or
appropriate utility companies that said fees are due and payable.
12.HOLD HARMLESS AND INDEMNIFICATION
(a) To the fullest extent allowed by law, Subdivider shall indemnify and hold
harmless City, its City Council, boards and commissions, officers, officials,
agents, employees, servants, consultants and volunteers (hereinafter,
"lndemnitees") from and against any liability, loss, damage, expense, and
cost (including reasonable legal fees and costs oflitigation 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, arising out of orin any way related to Subdivider's performance or
nonperformance of his/her duties under this Agreement, or from negligent
acts or omissions or willful misconduct of Subdivider, its agents, employees,
contractors, or subcontractors. Subdivider 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
Subdivider"s performance or nonperformance of his/her duties and
obligations hereunder, including all claims, demands, causes of action,
liability or loss because of or arising out of, in whole orin part, the design
and construction of the Improvements. This indemnification and agreement
to hold harmless shall extend to injuries to persons and damages or taking
of property resulting from the design or construction of the Subdivision, and
the Improvements described in this Agreement, and in addition, to adjacent
property owners as a consequence of the diversion of waters from the
design or construction of public drainage systems, streets and other
Improvements, except to the extent any of the foregoing is caused by the
negligence or willful misconduct of the City or the City's agents, employees
and independent contractors.
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(b) AcceptancebyCityofthelmprovementsshallnotconstituteanassumption
by City of any responsibility for any damage covered by this section. City
shall not be responsible for the design or construction of the Subdivision or
the Improvements pursuant to the approved Improvement Plans or map,
regardless of any negligent action or inaction taken by the City in approving
the plans or map, unless the particularimprovement design was specifically
required by City over written objection by Subdivider, indicating that the
particular improvement design was dangerous or defective and suggested
an alternative safe and feasible design, submitted to the City Engineer
before approval of the particularimprovement design.
(C)After City's acceptance of the Improvements, Subdivider shall remain
obligated to correct or eliminate any defect in design or dangerous
condition created by defects in design or construction, provided however,
that Subdivider shall not be responsible for routine maintenance. Provisions
of this section shall remain in full force and effect for ten (10) years
following City's acceptance of the Improvements. Subdivider acknowledges
and agrees that Subdivider shall be responsible and liable for the design and
construction of the Improvements and other work done pursuant to this
Agreement and that City shall not be liable for any acts or omissions in
approving, reviewing, checking, correcting, or modifying any Improvement
Plans or related specifications orin approving, reviewing orinspecting any
work or construction. The improvement security shall not be required to
cover the provisions of this paragraph beyond the guarantee and warranty
period specified in this agreement.
13.INSURANCE
Prior to commencing any of the Work, Subdivider shall procure and maintain for the duration of
the Work, plus an additional year from the date of acceptance for the Commercial General Liability
coverage specified below, insurance against claims for injuries to persons or damages to property
which may arise from orin connection with the performance of the work hereunder by Subdivider,
its contractor, agents, representatives, employees or subcontractors.
Coverage shall meet the following requirements:
(a) Commercial General Liability (CGL) shall be on Insurance Services Office
(150) 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 Subdivider'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 S2,000,000 per occurrence. The CGL
policy must protect against any and all liability for personal injury, death,
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property damage or destruction, and personal and advertising injury. If a
general aggregate limit applies, either the general aggregate limit shall apply
separately to this project/location (150 CG 25 03 or 25 04) or the general
aggregate limit shall be twice the required occurrence limit.
(1)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.
(2) Additional Insured coverage under Subdivider"s policy shall be
"primary and non-contributory" and shall be at least as broad as 150
CG 20 01 04 13.
(3)The limits ofinsurance 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.
(b) Automobile Liability shall cover owned, hired, and non-owned autos, with
limit no less than Sl,000,000 per accident for bodilyinjury and property
damage.
(c) Workers' Compensation, as required by the State of California, shall cover
Statutory Limits, and Employer's Liability Insurance of no less than
Sl,000,000 per accident for bodily injury or disease.
(d) If Subdivider maintains broader coverage and/or higherinsurance limits, City
will be entitled to Subdivider"s broader coverage and/or higher limits.
(e)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 at least as broad as 150 Form
CG 20 10 11 85 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.
(f) For any claims related to this Agreement or the Work, Subdivider's
insurance shall be "primary and non-contributory" and at least as broad as
150 CG 20 01 04 13 with respect to City, its officers, officials, employees and
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volunteers, and shall not seek contribution from City's insurance. If the
limits ofinsurance 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.
(g)Each insurance policy must provide that coverage will not be canceled,
except with 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.
(h) Each required policy must include an endorsement providing that the carrier
agrees to waive any right of subrogation it may have against City. Further,
Subdivider agrees to waive any rights of subrogation which any of
Subdivider"s insurers may acquire from Subdivider by virtue of payment of
any loss. Subdivider agrees to obtain any endorsement that may be
necessary to affect this waiver of subrogation. The Workers" Compensation
policy must be endorsed with a waiver of subrogation in favor of the City for
all work performed by Subdivider or Subdivider"s Contractor, its employees,
agents and subcontractors.
(i) Insurance must be issued by insurers licensed in the State of California and
with an A.M. Best"s financial strength rating of "A Vll" or better.
14. COVENANT RUNNING WITH THE LAND; ASSIGNMENT
(a)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, to which recording the Parties each hereby consent.
Upon any sale or division of the Property, the terms, covenants, conditions
and restrictions of this agreement shall apply to each parcel, and the owner
or owners of each parcel shall succeed to the obligations imposed upon
Subdivider by this Agreement.
(b)Except as pursuant to Section 14(a), Subdivider shall not assign this
Agreement without the prior written consent of the City. Any attempted or
purported assignment in violation of this paragraph shall be null and void
and have no force or effect. The sale or other disposition of the Project shall
not relieve Subdivider of its obligations under this Agreement. If Subdivider
intends to sell the Project or any portion of the Project to any other person
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or entity, Subdivider may request a novation of this Agreement and
substitution ofimprovement security. Notwithstanding the foregoing, City
agrees that in the event that the City declines in writing to exercise its rights
under Section 1(e) above, if the Subdivision has been subdivided (or further
subdivided) the fee owner of any lot within the Subdivision (a "Subsequent
Owner"), is authorized to complete the Work required to be performed by
Subdivider under this Agreement, even if such portion of the Improvements
will not be situated on the Subsequent Owner's lot. Any Subsequent Owner
who undertakes to complete the Improvements or part thereof shall be
subject to and benefit from the inspection and acceptance procedures set
out in Section 3 above, and may recover all costs incurred thereby from the
Subdivider. In the event that Subsequent Owner is unable to recover such
costs from Subdivider, the City and Subsequent Owner will enter good-faith
discussions regarding reimbursement to Subsequent Owner from the
proceeds of the security provided by Subdivider under this Agreement.
15.DEFAULT, BREACH, AND REMEDIES TO CITY
(a)Default of Subdivider shall include, but not be limited to the events listed in
this section 15(a) (each an "Event of Default"). No Event of Default shall
become an actual Default of Subdivider under this Agreement (each, a
"Default"), unless City first provides written notice of said Event of Default
to Subdivider, any mortgagee of Subdivider of which City has received
written notice, and Subdivider's surety and thereafter Subdivider fails to
cure the Event of Default within thirty (30) days of its, its mortgagee"s (if
applicable) and its surety's receipt of notice, or, if the Event of Default is of a
nature that can not reasonably be cured in said time, initiates steps to cure
the Event of Default within said 30-day period and thereafter cures the
Event of Default within a reasonable time. An Event of Default includes
without limitation:
(1) Subdivider"s failure to timely commence construction of the
Improvements under this Agreement;
(2) Subdivider's failure to timely complete construction of the
Improvements;
(3) Subdivider"s failure to timely cure any defect in the Improvements;
(4) Subdivider's failure to perform substantial construction work for a
period of 60 consecutive calendar days after commencement of the
work;
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(5) Subdivider"s insolvency, appointment of a receiver, or the filing of
any petition in bankruptcy, either voluntary orinvoluntary, which
Subdivider.fails to discharge within 30 days;
(6)The commencement of a foreclosure action against the Subdivision
or a portion thereof, or any conveyance in lieu orin avoidance of
foreclosure; Subdivider"s failure to maintain any insurance policy
required under this Agreement; or
(7) Subdivider'sfailuretoperformanyotherobligationunderthis
Agreement.
(b) City shall provide written notice of any Event of Default of Subdivider to any
Subsequent Owner of which the City has received written notice,
concurrently with any written notice of said Event of Default to Subdivider.
The City reserves all remedies available to it at law or in equity for breach of
Subdivider"s obligations under this Agreement. Upon the occurrence of a
Default, the City shall have the right, subject to this section, to draw upon or
use the appropriate security to mitigate the City's damages in the event of a
Default of Subdivider. The City"s right to draw upon or use the security is in
addition to any other remedy available to the City. The parties acknowledge
that the estimated costs and security amounts may not reflect the actual
cost of construction of the Improvements and, therefore, the City's damages
for a Default of Subdivider shall be measured by the cost of completing the
required Improvements. The City may use the sums provided by the security
for completion of the Improvements in accordance with the Improvement
Plans.
(d) In the event of a Default of Subdivider, Subdivider authorizes the City to
perform the obligations for which Subdivider is in default and agrees to pay
the entire cost of such performance by the City.
(e)The City may take over the Work and complete the Improvements by
contract or by any other method the City deems appropriate, at the expense
of Subdivider, and Subdivider"s surety shall be liable to the City for any
excess cost or damages to the City resulting therefrom. In such event, the
City, without liability for so doing, may take possession of and use any of
Subdivider's materials, appliances, plant and other property that are at the
work site and are necessary to complete the Improvements.
(f) Subdivider hereby grants the City an easement over all lands Subdivider
owns within t.he Subdivision, for the purposes of all access, egress, and
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occupation required to complete the Work in the event that the City
exercises its right under this Agreement to do so. Such easement shall
terminate without any further action of either Party upon the completion of
all of Subdivider's obligations under this Agreement, including for avoidance
of doubt, obligations under Section 12.c.
(g) [lntentionally omitted.]
(h)In the event of a Default of Subdivider, Subdivider agrees to pay all costs and
expenses incurred by City in securing performance of those obligations,
including but not limited to fees and charges of architects, engineers,
attorneys and other professionals, and costs of suit and reasonable
attorneys" fees.
(i) City's failure to take enforcement action with respect to a Default of
Subdivider, or to declare a breach, shall not be construed as a waiver of that
default or breach or any subsequent default or breach by Subdivider.
16.SUBDMDER NOT AGENT OF CITY
Neither Subdivider nor any of Subdivider"s agents or contractors are or shall be considered to be
agents of City in connection with the performance of Subdivider"s obligations under this
Agreement.
17. MAPS AND/OR IMPROVEMENT PLANS
Developer shall provide City with the following at the Developer's expense:
A. A scan in.pdf format and/or originals of all executed Improvement Plans, Storm
Water Management Plan Report & SWME Agreement, Final Map, Maintenance Agreement
(Exhibit D), and all other documentation deemed necessary by the City Engineer to
complete and facilitate City acceptance of the work.
18.SUBDMDER TO WARN PUBLIC
Until final acceptance of the Improvements, Subdivider shall give good and adequate warning to
the public of any dangerous condition of the Improvements, and shall take reasonable actions to
protect the public from such dangerous condition.
19.NOTICES
All notices, demands, requests or approvals to be given under this Agreement shall be given in
writing and conclusively shall be deemed served when delivered personally or on the second
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business day after the deposit thereofin the United States Mail, postage prepaid, registered or
certified, addressed as hereinafter provided.
All notices, demands, requests, or approvals from Subdivider to City shall be addressed to City at:
City of Cupertino
10300 Torre Ave.
Cupertino CA 95014
Attention: Public Works Director/City Engineer
All notices, demands, requests, or approvals from City to Subdivider shall be addressed to
Subdivider at:
190 West St. James, LLC
21710 Stevens Creek Blvd., Suite 200
Cupertino, CA 95014
Attention: Kenneth S. Tersini
20.NO VESTING OF RIGHTS
Performance by Subdivider of this Agreement shall not be construed to vest Subdivider"s rights
with respect to any change in any zoning or building law or ordinance.
21.TIME IS OF THE ESSENCE
Time is of the essence in the performance of this agreement by subdivider.
22.NONDISCRIMINATION
Subdivider, its agents, employees, contractors and subcontractors shall not discriminate in any
way against any person on the basis of age, sex, race, color, religion, sexual orientation, actual or
perceived gender identity, disability, ethnicity, or national origin in connection with or related to
the performance of this Agreement.
23.GOVERNING LAW AND ATTORNEY FEES
This Agreement shall be interpreted under, and enforced by the laws of the State of California
excepting any choice of law rules which may direct the application of laws of another jurisdiction.
The Agreement and obligations of the parties are subject to all valid laws, orders, rules, and
regulations of the authorities having jurisdiction over this Agreement (or the successors of those
authorities). Any suits brought pursuant to this Agreement shall be filed with the courts of the
County of Santa Clara, State of California.
If City sues to compel Subdivider's performance of this Agreement, or to recover damages or costs
incurred in completing or maintaining the work on the Improvements, Subdivider agrees to pay all
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attorneys' fees and other costs and expenses of litigating incurred by the City, even if Subdivider
subsequently resumes and completes the work.
24.RELATIONSHIP OF PARTIES
Neither Subdivider nor any of its contractors, employees or agents shall be deemed to be agents
of the City in connection with the Performance of Subdivider's obligations under this agreement.
25.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.
26. INTEGRATED AGREEMENT
This Agreement represents the full and complete understanding of every kind or nature
whatsoever between the parties hereto, and all preliminary negotiations and agreements of
whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be
held to vary the provisions hereof. Any modification of this Agreement will be effective only by
written execution signed by both City and Subdivider. All unchecked boxes do not apply to this
Agreement.
IN WITNESS WHEREOF, the Parties have caused this agreement to be executed by their respective,
duly authorized officers on the date listed above.
Ap o ed s form:
Christoph D. Jensen
City Attorney
CITY OF CUPERTINO:
Chad Mosley
Assistant Director/City Engineer
Public Works
SUBDMDER:
190 West St. James, LLC, a California
Limited Liability Company
Kenneth S. Tersini
Manager
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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
Countyof Santa Clara
On/VbW-sAe-' /7, 2z=2_7 beforeme, K's'en SQuarC'a ,NotaryPublic,
(Here insert naine and title of the officer)
personally appeared c "f 4 (/ ./'4 l') f / e- Y ,
who proved to me on the basis of satisfactoiy evidence to be the persond whose name@)__is/are subsciibed to
the within inshument and acknowledged to me that i/she/they executed the same in :/her/their authorized
capacity%), and that by §/her/their signature(0 on the instrument the persor, or the entity upon behalf of
which the person(,0 acted, executed the instrument.
I certify under PENAI_,TY OF PERJURY under the laws of the State of California that the foregoing paragraph
is true and correct.
'k & & & & & & ia & di & @ 4
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WI'n'JESSmyhandandofficialseal. i( No':a,taClaracounty"pubHC(a'if@rn'a H
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ADDITIONAL OPTIONAL INFORMATION
INSTRUCTIONS FOR COMPLETING THIS FORM
Any acknowledgment completed in Calfirnia must contain verbiage exactly as
DESCRIPTION OF THE ATTACHED DOCUMENT appears above in the notary section or a separate acknowledgment fr:irm must be
properly completed and attached to that document. The only exception is if a
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(Title or descriph'on ofa ttached doc ument) acimowledgrnent verbiage as may be printed 071 such a document so long ZIS 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
(Title or descriph'on ofattached doc iunentcon t+n' ued) document carefully for proper notarial wording and attach this form f required.
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commission followed by a comma and then your title (notary public).
ii Pit the name(s) of document signer(s) who personally appear at the time of
notaiation.
CAPACITY CLAIMED BY THE SIGNER a Indicate the correct singular or plural forms by crossing off incorrect fomis (i-e.
€Individual(s) he/sheAhey7-is/ga)orcirclingthecorrectfomis.Failuretocorrectlyindicatethisinformation may lead to rejection of document recording.
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Impression must not cover text or lines. If seal impression smudges, re-seal if a
(Title) sufficient area pemiits, othenvise complete a different acknowledgment form.
@ p artner(s) @ Signature of the notary public must match the signature on file with the office ofthe county clerk.
[1 Attorney-in-Fact '> Additional information is not required but could help to ensure this
[]Tnistee(s) acknowledgmentisnotmisusedorattachedtoadifferentdocument,
z Other aa Indicate title or type of attached dociunent, niunber of pages and date.
4 Indicate the capacity claimed by the signer. If the claimed capacity is a
corpomte officer, indicate the title (i.e. CEO, CFO, Secretary).
* Securely attach this document to the signed document
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CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT
A notary public or otlier officer completing tliis certificate verifies only the identity of tl'ie individual WIIO signed the document to
w)iich this certificate is attached, and not the trut)ifulness, accuracy, or validity of that docui'nent.
State of Califoriiia
County of Sanjq C\arl
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011 priarkr "t) Lobi before ine, JChn i Fcr <,k>abiri pg ffaz5 [t4 Is c , Notary Public,(Here insert naine and title of the officer)
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who proved to me on tlie basis of satisfactory evidence to be tlie person(s) wliose nam5QGre subscribed to
iQlier/their
capacity(ies), and tliat giiature(s) on tlie instrument the person(s), or ENe entity upon belialf of
tlie witliin instrument to me tlia@he/they executed tlie same autliorizedand,g3kiiowledged
bQier/t]ieir si
whicli tlie person(s) actea3xecuted tlie instrument.
I certify under PENALTY OF PERJURY uiider tlie laws of tlie State of California tliat t]ie foregoing paragrapli
IS TrLle alld COITeCt I & a,,a *,i q a a, 4 ,, , @,
I JENslFERyooOis l- rlotary Public - California [
WITNESS my liand ai'id official seal. Ia%' (ommSan';',sclonlara@c,'3u,'4, !!""' My Comm. Expires Aug 24, 2025 k
Signatureba? (NotarySeal)
* *,
ADDITIONAL OPTIONAL INFORMATION
INSTRUCTIONS FOR COMPLETING THIS FORM
An)i acknowledgmenr compiered m California nwsl con(ain sierbiage exacrl)i as
DESCR_TPTION OF THE ATTACHED DOC{_TMENT appear's abosie in the norary sectron Or a separare adcnowled5pnem foi'rn wat be
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coinmission followed by a comma ai'id tlien your title (notary public)
* Print tlie naine(s) of docuinenl sigi'ier(s) who personally appear at llie time of
notarizatton
CAPACITY CL AIMED BY THE SIGNER * Indicate the correct smgular or plural fonns by crossing off incorrect forms (i e
€ Illdividlla, (s) he/she/ is /&14 ) or circling the conecl forins Failure to correctly indicate tlusinfori'nation inay lead to rejection of document recordmg
[] Corporate Officer * Tlie notary seal iinpression inust be ctear and pliotograpliically reproducible
Impression must not cover text or lines If seal iinpression smudges, re-seal if a
(Ttfle) sufficient area perinits, otlierwise coinplete a different acknouiledgment fomi
€ Pa,,le,,(S) @ Signature of the notary' public iriust inatcli tlie signature on file witli tlie office of
tlie county clerk
€ Attorney-m-Fact a> Additional inforiiiation IS Ilot required but could help to ellStlre tliis
0 Trustee(s) acknowledginent IS not inisrised or atlaclied to a different docuinent.
[j Otller 'l Indicate title Or type of attaclied document, nuinber of pages and date I
aa Indicate the capacity claiined by tlie signer }f tlie claiined capacity is a
corporate officer, indicate tlie title (i e CEO, CFO, Secretary)
ii Securely attacli tlus document to tlie signed document
C 2004-2015 ProLiiik Signing Senaice, Inc. - All Rigms Reserved wivii'.TlieProLink.coni - Nalioiiivide Notary Senaice
Attach Notary acknowledgement for Subdivider's signatures:
Attachment:
Exhibit "A"- Schedule of Bonds, Fees, Deposits
Exhibit "B" - Dedication
Exhibit "C" - SWME
Exhibit "D" - Maintenance Agreement
Page 18 of 19
City 10/13
4829-8783-7943v5
ALF124070001
Exhibit A
SCHEDULE OF BONDS, FEES, AND DEPOSITS
Street Improvement Category:
PARTA.
PART B.
PART C.
PART D.
PART E.
PART F.
PART G.
PART H.
Faithful Performance Bond: Sl,237,900
Laborand Material Bond:51,237,900
Plan Check and Inspection Fee:5187,940 (Total, paid S60,000)
Transportation Impact Fee: S188,803 (Due at Building Permit per CMC14.02.040)
Storm Drainage Fee: S69,295.00
Storm Water Management Fee: 53,042.00
Map Checking Fee: Sll,527.00 (PAID)
Park Fee: S9,210,000.00
1402687 19
Page 19 of 19
City 10/13
4829-8783-7943v5
ALF124070001
DEDICATION IN FEE
FOR ROADWAY PURPOSES
21271 Stevens Creek Boulevard, Cupertino, CA 95014
APN 326-27-042 & 043
190 West St. James, LLC, a California limited liability company, dedicates in fee to the CITY
OF CUPERTINO, a California municipal corporation, for public purposes including, but not
limited to roadway purposes, together with the right to construct, repair, operate, and maintain
any and all public utilities and improvements in, on, under, along and across the rea] propeity
wliich shall be or become necessary for preservation of tlie public safety, welfare or convenience
the real property described in Exhibit A and shown in Exhibit B, which is situated in the City of
Cupertino, County of Santa Clara, State of California.
IN WITNESS WHEREOF, executed this ;" day of 06r-r , 202L.
190 West St. James, LLC:
s-l";),-
Kenneth S. Tersini
Manager
City of Cupertino:
Roger Lee
Director of Pub)ic Works
(Notary acknowledgment to be attached)
OCTOBER 18, 2021 JOB NO. 20-143
EXHIBIT "A"
LEGAL DESCRIPTION OF
ROADWAY DEDICATION
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE CITY OF CUPERTINO,
COUNTY OF SANTA CLARA, STATE OF CALIFORNIA DESCRIBED AS FOLLOWS:
BEING A PORTION OF PARCEL A AS SHOWN ON THAT CERTAIN DOCUMENT
ENTITLED "LOT LINE ADJUSTMENT", FILED FOR RECORD
20 AS DOCUMENT NO. , RECORDS OF SAID SANTA CLARA
COUNTY, HEREIN REFERRED TO AS "ROADWAY DEDICATION 'A-1' " AND MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
ROADWAY DEDICATION 'A-1'
BEGINNING AT THE SOUTHEASTERLY CORNER OF SAID PARCEL A, BEING A
POINT AT THE INTERSECTION OF THE NORTHERLY BOUNDARY OF STEVENS
CREEK BOULEVARD (PUBLIC STREET) AND THE EASTERLY BOUNDARY OF SAID
PARCEL A:
THENCE WESTERLY ALONG SAID NORTHERLY BOUNDARY NORTH 89o 15' 40"
WEST, A DIST ANCE OF 129.78 FEET:
THENCE CONTINUING WESTERLY ALONG SAID NORTHERLY BOUNDARY NORTH
84o 03' 28" WEST, A DISTANCE OF 139.63 FEET TO THE BEGINNING OF A TANGENT
CURVE TO THE RIGHT HAVING A RADIUS OF 100.00 FEET;
THENCE WESTERLY ALONG SAID NORTHERLY BOUNDARY AND CURVE THROUGH
A CENTRAL ANGLE OF 7o 25' 37", AN ARC DISTANCE OF 12.96 FEET:
THENCE DEPARTING FROM SAID NORTHERLY BOUNDARY, SOUTH 86o 59' 38"
EAST, A DISTANCE OF 574.47 FEET TO THE BEGINNING OF A TANGENT CURVE TO
THE LEFT HAVING A RADIUS OF 983.00 FEET:
THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 02o 16'
02", AN ARC DISTANCE OF 38.90 FEET:
THENCE SOUTH 89o 15' 40" EAST, A DISTANCE OF 68.43 FEET TO A POINT ON SAID
EASTERLY BOUNDARY OF PARCEL A;
THENCE SOUTHERLY ALONG SAID EASTERLY BOUNDARY SOUTH 00o 54' 00"
WEST, A DIST ANCE OF 7.00 FEET TO THE POINT OF BEGINNING 'A-1 ';
CONTAINING 1 ,664 SQUARE FEET (0.038 ACRES) OF LAND, MORE OR LESS;
1 0F4
IN CONJUNCTION WITH THE ABOVE DESCRIBED EASEMENT, AN ADDITIONAL
AREA BEING A PORTION OF PARCEL A AS SHOWN ON SAID LOT LINE
ADJUSTMENT, HEREIN REFERRED TO "ROADWAY DEDICATION 'A-2' " AND
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
ROADWAY DEDICATION 'A-2'
BEGINNING AT THE NORTHEASTERLY CORNER OF SAID PARCEL A, BEING A
POINT AT THE INTERSECTION OF THE SOUTHERLY BOUNDARY OF MARY AVENUE
(PUBLIC STREET) AND THE EASTERLY BOUNDARY OF SAID PARCEL A;
THENCE DEPARTING FROM SAID SOUTHERLY BOUNDARY AND HEADING
SOUTHERLY ALONG SAID EASTERLY BOUNDARY, SOUTH 00o 54' 00" WEST, A
DISTANCE OF 12.00 FEET:
THENCE DEPARTING FROM SAID EASTERLY BOUNDARY, NORTH 89o 11 ' 55" WEST,
A DISTANCE OF 77.89 FEET TO A POINT ON SAID SOUTHERLY BOUNDARY OF
MARY AVENUE:
THENCE ALONG SAID SOUTHERLY BOUNDARY, NORTH 00o 48' 05" EAST, A
DIST ANCE OF 12.00 FEET:
THENCE CONTINUING ALONG SAID SOUTHERLY BOUNDARY, SOUTH 89o 11' 55"
EAST, A DIST ANCE OF 77.91 FEET TO THE POINT OF BEGINNING 'A-2':
CONT AINING 935 SQUARE FEET (0.022 ACRES) OF LAND, MORE OR LESS;
IN CONJUNCTION WITH THE ABOVE DESCRIBED SEGMENT OF LAND, AN
ADDITIONAL AREA BEING A PORTION OF PARCEL B AS SHOWN ON SAID LOT
LINE ADJUSTMENT, HEREIN REFERRED TO "ROADWAY DEDICATION 'B-1' " AND
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
ROADWAY DEDICATION 'B-1 '
BEGINNING AT THE SOUTHWESTERLY CORNER OF SAID PARCEL B, BEING A
POINT AT THE INTERSECTION OF THE NORTHERLY BOUNDARY OF STEVENS
CREEK BOULEVARD (PUBLIC STREET) AND THE WESTERLY BOUNDARY OF SAID
PARCEL B:
THENCE DEPARTING FROM SAID NORTHERLY BOUNDARY AND ALONG SAID
WESTERLY BOUNDARY OF PARCEL B, NORTH 00o 54' 00" WEST, A DISTANCE OF
7.00 FEET:
THENCE DEPARTING FROM SAID WESTERLY BOUNDARY, SOUTH 89o 15' 40" EAST,
A DISTANCE OF 468.17 FEET TO THE BEGINNING OF A NON-TANGENT CURVE TO
THE LEFT HAVING A RADIUS OF 50.00 FEET;
2 0F4
THENCE EASTERLY ALONG SAID CURVE, FROM WHICH A RADIAL POINT BEARS
SOUTH 29o 56' 40" EAST, THROUGH A CENTRAL ANGLE OF Olo 18' 28", AN ARC
DIST ANCE OF 1 .14 FEET;
THENCE NORTH 00o 48' 05" EAST, A DISTANCE OF 18 42 FEET:
THENCE SOUTH 89o 15' 40" EAST, A DISTANCE OF 17.36 FEET TO THE BEGINNING
OF A NON-TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 50.00 FEET:
THENCE NORTHERLY ALONG SAID CURVE, FROM WHICH A RADIAL POINT BEARS
SOUTH 60o 35' 40" EAST, THROUGH A CENTRAL ANGLE OF 14o 32' 03", AND ARC
DIST ANCE OF 12.68 FEET:
THENCE NORTH 00o 48' 05" EAST, A DISTANCE OF 69.29 FEET TO THE BEGINNING
OF A TANGENT CURVE TO THE LEFT HAVING A RADIUS OF 266.50 FEET;
THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL
ANGLE OF 21o 11' 42", AN ARC DISTANCE OF 98.58 FEET TO THE
BEGINNING OF A REVERSE CURVE TO THE RIGHT HAVING A RADIUS OF
58.50 FEET:
THENCE NORTHERLY ALONG SAiD CURVE THROUGH A CENTRAL ANGLE
OF 08o 16' 41", AN ARC DISTANCE OF 8.45 FEET TO THE BEGINNING OF A
REVERSE CURVE TO THE LEFT HAVING A RADIUS OF 41 .50 FEET;
THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL
ANGLE OF 1lo 55' 22", AN ARC DISTANCE OF 8.64 FEET TO THE
BEGINNING OF A COMPOUND CURVE TO THE LEFT HAVING A RADIUS OF
268.00 FEET:
THENCE WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE
OF 65o 09' 38", AN ARC DIST ANCE OF 304.79 FEET;
THENCE NORTH 89o 11 ' 55" WEST, A DIST ANCE OF 91 .79 FEET TO A POINT ON THE
WESTERLY BOUNDARY OF SAID PARCEL B;
THENCE NORTHERLY ALONG SAID WESTERLY BOUNDARY NORTH 00" 54' 00"
EAST, A DISTANCE OF 12.00 FEET TO A POINT ALONG THE SOUTHERLY
BOUNDARY OF MARY AVENUE (PUBLIC STREET):
THENCE EASTERLY ALONG SAID SOUTHERLY BOUNDARY SOUTH 89oI 1' 55" EAST,
A DISTANCE OF 91.77 FEET'TO THE BEGINNING OF A TANGENT CURVE TO THE
RIGHT HAVING A RADIUS OF 280.00 FEET:
THENCE CONTINUING ALONG SAID BOUNDARY AND CURVE THROUGH A CENTRAL
ANGLE OF 90o 00' 00", AN ARC DISTANCE OF 439 82 FEET:
THENCE CONTINUING ALONG SAID BOUNDARY SOUTH 00o 48' 05" WEST, A
DIST ANCE OF 90.07 FEET:
3 0F4
THENCE CONTINUING ALONG SAID BOUNDARY SOUTH 45o 46' 13" WEST, A
DISTANCE OF 24.05 FEET TO A POINT ON THE NORTHERLY BOUNDARY OF
STEVENS CREEK BOULEVARD (PUBLIC STREET):
THENCE WESTERLY ALONG SAID NORTHERLY BOUNDARY NORTH 89o 15' 40"
WEST, A DISTANCE OF 487.62 FEET TO THE POINT OF BEGINNING 'B-1';
CONT AINING 11 ,608 SQUARE FEET (0.267 ACRES) OF LAND, MORE OR LESS;
BASIS OF BEARINGS: THE BEARING NORTH 89o1 1'55" WEST, BETWEEN TWO
FOUND MONUMENTS ON MARY AVENUE (PUBLIC STREET) AS SHOWN ON THAT
CERTAIN PARCEL MAP, FILED FOR RECORD IN BOOK 838 0F MAPS, AT PAGES 24-
25, OF RECORDS OF SAID SANTA CLARA COUNTY WAS USED AS THE BASIS OF
ALL BEARINGS SHOWN HEREON.
A PLAT ENTITLED "EXHIBIT B" IS ATTACHED HERETO AND MADE A PART HEREOF.
THIS DESCRIPTION AND THE ACCOMPANYING PLAT WERE PREPARED BY ME OR
PREPARED UNDER MY DIRECTION.
ANDREW TURNER
P.L.S. 9104
CML ENGINEERING ASSOCIATES, INC.
1 0/1 8/2021
DATE
4 0F4
EXHIBIT B
SURVEYOR'SSTATEMENT Q
THIS SITE PLAN WAS PREPARED - - - - DlSnNCnVE BOUNDARY
55iR 3NDy MjyyON, , - - . RIGHT-OF-wAY LINE' 7%-"' - - - CENTER ONE.-.-. '- rvietuih i m i iiir
- -, -=-,__ LAN 1111(i ul I LllNa
ANIDOR/Elw8"o20R2NEIR' PLas"'L-D o' FMixOoUNvNUnDMxEiBiNuRTrAws\spDPnsUyKNCH
DATED /,e/#" -"-p'a\
i(At ta;at
l l N0. 9104 j I " /*/ REFERENCES
POB POINT OF BEGINNING
'@r A'/ [1] LLA - DOC. NO.
W [2] PARCEL MAP - 838 M 24-25
@\ S63'53'37'W(R) J
"" " % R'OO'O' [a] BASIS OF BEARINGS
S, ',/-#72'46'0" xsgaii'ss"w
%% %X K=635'1' R=542.00' [1] 253-41.' [2]->,',," s S bs3"o5'32" N8911 55 W,-,, '%,, , ,rL=596.83' 169,68' [1] R=280.0,0' .[1] '-' i i b90'0000
} ,! - +@ %]fflUf 1=439,82-!! __.i__.i> o_tmnn'rq1
s"'i \ 77.91 91.77 'S '% 1%-Jllj.tl;v !_zJ" S L2[']'/" I S % A-90'0000'heusl FARCELAL3[1]J ioa" %s -"6a95''t- fc-
A'Sa'-a'-aaall DOC.N0. 9;a! X4SOO'4'8'05'W"'a"=%"'yJ'-*" aa'ynani74lffi""(q -ygklollaflo"'jrel"ei"ra
'%,'-
b'4 %," \ . , . I # " PARcELB' ? lty6u7u:3o, u[a2]c
A soo",ow,l DOC, NO, 4
1 150.36 [1] > it/l'k I l'l S45'46'l3'W
B=loo..O,O'j1] /;%%l izg.zs'l 487.62' 2-4.-05;ifJ"
C68a45'18' -' N84'03'28'W N8915'40"W 617.40' [1]
'j-'-Q=Q - - 139-63' [U-srrm-s-gjff-aHBgl-5'40"y[2-] "j" - -(PLalC STREET)
BASIS OF BEARINGS
THE BEARING OF N8911'55'W OF THE CENTERLINE OF MARY A%tENUE AS SHOWN ON THAT CERTAIN PARCEL MAP
FILED FOR RECORD IN BOOK 838 0F MAPS AT PAGES 24-25, SANTA CLARA COUNTY RECORDS, AND AS FOUND
MONUMENTED, WAS TAKEN AS BASIS OF ALL BEARINGS FOR THIS PLAT.
EXHIBIT "B" - ROADWAY DEDICATION - EXISTING SITE
PLAT TO ACCOMPANY LEGAL DESCRIPTION
m * * a r'kB Caxailx - ellxxx - ei ll%&jl%BY: CH
IRI (;_ g vi@g kill Yll u I !lit '7Mit sa ('.h-!iirwnrvu:tlgn:"ii :l,lip- gi. :l ffi7&ffl Kl DATE, 10/18/2021
181 Engineering ;T(-,J:,sH,-A;a,3,ilin:i,i,a------SCALE, 1'=200' _10F4
d ASSOClateS '-' -- ---2 mire,K)B N0. 0-143
EXHIBIT B
i sssass'sz"w(s)S stmveyog'ss'rarevexr
'y T)-IIS SITE PLAN WAS PREPARED
&\'S,,,,s , X%X B'2MEO!'U/4MYa"')a"DRaa9'0'h%%X@"'sLT-uDso"
'o.l S % ANDREW TURNER, P.L.S. I I N0. 9104 I I" $-l } '%- l* /*/
(ill S -+ S 10/18/2021 '( / /
>-s s t._ s 'y.vx ist
: S% r% % DATED Ms <z } -?s % (' }us 4% ! }
%8, - -,.
roast XOO, %%
l %<, '-x
l "eAi-. aaa-aaaa". i
<OJ2. j
%,,@"
S "! L2l
')
(/%'l
, ' i %,
!!" "
o %% -;-%'M Ojl 'J
7 'B FARCEL A +
6!lz ,l L.IDOC. NO, ,,iB,\ t
\ "
l
% -€0'-?')'
t ,l
b-t'zs'h-t'
,:'a,,,7@,y-8r202.yQl::'6.:!5+,g+,,3zat
L=120.03" N84'03'28'Wa/?-b
10o.oo' 139.63'
0
ROADWAY DEDICAnON A-1 - , -,,
1,664SF ' "'0,5I i - _0 -4-
'%, SEE DETAIL A ' s89l5 o E ;"
i"!':.X(XIX%Xe->nks(0?>l"l'rk'lll7Q2'::6'3o'7't'o'r 4fflJ -,l "S 'R.""""29_J8'_.636"800'2o4"3' l 'oo" o'53
! "<':"""'- "-%;': 1:"9',6'3" !"N:g"13!58"4090iw 12!9.J
SS (XEg 8ml[ (PllBLjC ffREET) POB A-IJ
EXHIBIT "B" - ROADWAY DEDICATION
PLAT TO ACCOMPANY LEGAL DESCRIPTION
ii * s f%f- JJ ea - fz zz - elJ zahx - ei ia+ii BY, CH
l?l F -Ni&l ulffl (ilnea,,:-_a ,lao rW,lu(J:IF,l: Qi"i0ila ss q, J 7 a DATE, 10/18/2021
I l aa - ivvv ITIIII-IIIIJ r iiii.g ttg vuv
l %fiffii l GH%JIHe'el IH!ffll San Jose, CA 95110
I € I - ' - - ' v (ual zsx_ws SCALE, 1'=80' _20F4
Associates "-"" ""2@-i4 !,,K)B N0, 3
EXHIBIT B
gllR\/EYOR'Q ST ATEMENT
I I - - - - - - - f - - %- - - - - - - - - - - - II I
15
X'3"- 4'0"a
l(T,
Y% L5 t
THIS SITE PLAN WAS PREPARED
_______BY2______MY,_,_D_lR_,,_ECnON. m,,%,,.T%,#,#A,Ao_
I _ 12 'l ANDREW TURNER, P.L.S. I I N0. 9104 l- i
l l* /*/
j 10/18/2021 '1, / /' rv'cn - Thr _A;'/IJ rl I L. 11
W'2
j'=30' =LEGEND
- - - - DlSTINCnVE BOUNDARY
- - - - RIGHT-OF-WAY LINE
I I firllffQllllP
r I a ULN ILK LlNt_
DTh A-9 - UALW jjMA- rVleTiklri I /-IT I Iklr
r siu rs-& , ff/Vl/ rsryvyc LAIJIIIN(i Ltjl ulNC
I " ""' POB POINT OF BEGINNING
S8911'55'E 1, S8911'55'E S
_ ( 77.91' z}( 91.77' -, %,
l :jl t _'\ i a %%, ,. %%.
77.89' o. 91.79' X
* 4, }'90- }
' L2 "ssgait'ss'r'%riagaii'ss'w ' 8a;!%H0
ROADWAY XooaR"26k- 4
[)CAnC)A2- S_" eS'aXsO%Oo XX935SF 'N '4i Jf*% (4
"\o (XX %3g
€N S '0, a$,
0 -,l
tj e
P
0
5 ,,, R=41.50' %
bll"55'22' %
ffi PARCEL B L=8.64'
R=58.50' \
DOC, NO, , . I
N89'06'00'W 132.18' "" l-,, L=8.45'
a -,R522l;161.5402'.,/
3g-(O L=98.58' P
IJ)-aha)
'F?>',_a j:)€)) ?
" ' # ; 8 ?%n
8 ROADWAY DEDICATION B-1 8 o '$ %
t,n 11,608 SF I SEE DETAIL 812 8 o
8 l }' t "_f_ S8915'40'E 468.17' l / ,/ ,,'
- % ... ' /Via
)5POB A-1 & B-1 3' OPfB'80Ul[VMfD (pueuc smm) % '
hsgais'+oaw ey.s:zo -'$-,9
EXHIBIT "B" - ROADWAY DEDICATION
PLAT TO ACCOMPANY LEGAL DESCRIPTION
r * @ s f'taatl rxxtsii s eljxsax - ei I?lj&a BY, CH
IRI G Nl@I : fill ciryin:on:so ,.,-lp.rwnjvSJlplljnl: Qa,l. rio ."tin I 'If@';fA a DATE, 10/18/2021
IAI ;ngtneer Ing i,a'r-::-2i'-:2'.o #=# ---SCALE, 1'=80' _3 _OF 4
l ASSOClateS '-' -- ---,K)B N0. 20-143 ="""o'
SURVEYOR'S STATEMENT
THIS SITE PLAN WAS PREPARED
r___,""""'=ffON. m,,:,T,$,#,#,,Ao_
ANDREW TURNERI F).L.s. I ( N0. 9104 l i
l* /*/
10/18/2021 ,. / /
DAT'E:D dfcA,o"'
ONE TABLE CUR\E TABLE
ONE I BEARING LENGTH CURff I RADIUS DELTA LENGTH
Ll N73'34'06'E 17.84'C1 50.00'118'28"1.14'
L2 S8911'55'E 83.73'C2 50,00'1432'03'12.68'
L3 NOO'48'05'E 12.00'
L4 NOO'48'05'E 18.42'
L5 S89"l5'40"E 17.36'
EXHIBIT "B" - ROADWAY DEDICATION
PLAT TO ACCOMPANY LEGAL DESCRIPTION
r * _*a f'k!l rxaitxzx s Olxxz # eiiaiatax BY: CH
1@1 cm. "ly' w"',';I;,H;1;1';,iiH :"""DATE. 10/18/2021
II Engineering ;n"aose,?gs;6-"'-
I N'- I - - - Th (arpS aqi_*nr,r,SCALE: _40F4
Associates ' =" = -,K)B N0. 20-143 """'
Template Exliibit C
RECOIIING REQUESTED BY
AA"D WHEN RECORDED MAIL TO:
City of Culiertino
City Clerk's Office
10300 Torre Avemie
Cupeitino, CA 95014-3202
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §6103
Space above tliis line for Recorder's rise.
STORMWATER MANAGEMENT FACILITIES
OPERATION, MAINTENANCE AND EASEMENT AGREEMENT
Address
APN
Tliis STORMWATER MANAGEMF,NT FACILITIES OPERATION, MAINTENANCE
AND EASEMENT AGREEMENT ("Agreement") is made and entered into tliis day of
, 20 , by , a
("Covenantor") and tlie City of Cupertino, a municipal corporation
("City"). Covenantor and City are refeired to collectively herein as the "Parties" and eacli
individually as a "Party."
RECIT ALS:
Tliis Agreement is made and entered into witl'i reference to tlie following facts:
A. Tlie City is aritliorized and required to regulate and control tlie disposition of storm ai'id
surface waters as set forth in tlie City's Stormwater Pollution Prevention and Waterslied
Protection Ordinance, Ordinai'ice No. 1571, effective October 15, 2003 (as currently in effect and
as it may liereafter be amended, tlie "Ordinance").
B.Tlie Covenantor is tlie owner of a ceitain tract or parcel of land designated as APN
and more particularly described in Exliibit A attaclied liereto
("Property").
C. Tlie Covenantor desires to construct certain improvements on tlie Property tliat may alter
existing stormwater conditions 011 botli tlie Property and adjacent lands.
D. To miniinize adverse impacts due to tl'iese anticipated clianges in existing storm and
surface water flow conditions, tl'ie Covenantor is required by tlie City to build and maintain, at
Covenantor's expense, stormwater management ai'id trasli capture facilities ("Facilities") as
more particrilarly described and sliown in tlie Stormwater Managemei'it Plan prepared by
Template Exliibit C
and dated , wliicli plan, togetlier witli any and all
amendments, including future amendinents, tliereto (collectively, tlie "SWMP"), are on file witli
tlie Public Works Department of tlie City of Cupeitino, California, and are liereby incorporated
ty reference.
E. Tlie City l'ias reviewed tlie SWMP, and subject to execution of tliis Agreement, lias
approved tlie SWMP.
AGREEMENT:
NOW, THEREFORE, in consideration of tlie benefits received and to be received by tlie
Covenantor, its successors and assigns, as a result of tlie City's approval of tlie SWMP, tlie
Parties liereby agree as follows:
I. Covenants Running Witli tlie Land; Propei:ty Subject to Agreement. All of t]ie Property
sliall be subject to tliis Agreement. Tl'ie Parties intend tliat tliis Agreement sliall run witli t]ie
land, sliall be binding on Covenantor, its successors and assigns, and all parties ltaving or
acquiring any riglit, title or interest in tlie Property or any portion tliereof, and tlieir respective
successors and assigns, and sliall inure to tlie benefit of tlie City and its successors and assigns
regardless of wlietlier City lias any ownersliip interest in tlie Property or any portion tliereof or
any property adjaceiit tliereto. Every limitation, easement, obligation, covenant, condition, and
restriction contained lierein sliall be deemed to be, and sliall be construed as a covenant numing
witli tlie land, and in addition, sliall be construed as an equitable servitude, enforceable by any
owi'ier of any portion of tlie Property against any otlier owner, tenant or occupant of tlie Property
or any poition t]iereof. Subject to tl'ie provisions of Section 9 below, eacli reference in tliis
Agreement to Covenantor sliall mean Covenantor and its successors in interest to t]ie Property or
any portion tliereof.
2. Responsibility for Installation, Operation and Maintenance. At its sole expense, tl'ie
Covenantor sliall construct, operate and perpetually maintain tlie Facilities in strict accordance
witli: (a) tlie Ordinaiice, (b) manufacturer's recon'unendations wliere applicable, (c) tlie SWMP
and any amendments t)iereto that liave been approved by tlie City, and (d) all otl'ier applicable
federal, state and local laws, ordinances and regulations. Covenantor, oii aii aimual basis, sliall
prepare and deliver to tl'ie City Public Works Director, a Maiiitenance Inspection Report in tlie
fori'n attaclied liereto as Exliibit C or sricli otlier fori'n as may be required by City tron'i tin'ie to
time. Tlie am'iual Maintenance Inspection Report shall identify all completed inspection and
maintenance tasks for tlie repoiting period and sliall be submitted to tlie City in order to verify
tliat inspection and inaintenance of tlie Facilities liave been conducted as required by tliis
Agreement. Tlie annual report sliall be submitted no later tlian October 15 of eacli year, under
penalty of perjury, to tlie City Public Works Director or sucli otlier member of tlie City staff as
directed by t)ie Public Works Director. Covenantor sliall provide in tlie annual report a record of
tlie volume of all accumulated sediment removed as a result of tlie treatment ineasure(s).
Covenantor sliall conduct a minimum of one annual inspection of tlie Facilities before tl'ie rainy
season; tliis inspection sliall occur between August 1st and September 30 eacli year. More
Template Exl'iibit C
frequei'it inspections may be required to comply witli tlie maintenance standards. Tlie results of
inspections sliall be recorded on tlie Maintenance Inspection Report.
3. Facility Modifications. At its sole expense, tlie Covenantor sliall make sucli clianges or
inodifications to tlie Facilities as tlie City Engineer may reasonably determine to be iiecessary or
desirable to ensure tliat tlie Facilities continue to operate as originally designed and approved.
Any clianges or modifications to tlie Facilities may be inade only witl'i prior written aritliorization
by tlie City Engineer or liis or lier designee.
4. Grant of Easement. Covenantor liereby grants to City a nonexclusive, access and
maintenance easement ("Easement") over tlie Facilities as depicted and described in Exliibit B
attaclied liereto and incorporated lierein ("Stormwater Facilities Area") for t]ie purpose of
perinitting tlie City, and its employees, agents, contractors, consultants, to inspect, inonitor.
maintain, repair and replace tlie Facilities. Covenantor grants to tlie City tlie nonexclusive riglit
of ingress and egress to tlie Stormwater Facilities Area, from tlie existing streets adjoining the
Property, over tlie existing drives, wallcways and parking areas located on t]ie Propeity, for
purposes connected witli any riglit under tliis Agreement or tlie perforinance of any obligations
reqriired by tliis Agreement.
5. Facility Inspections by tlie City. At reasonable tii'nes, after not less tlian forty-eiglit (48)
liours' prior written notice, except in tlie event of an iinmediate t)'ireat to public liealtli and safety
in whicli case no prior notice s]iall be required, and in a reasonable manner as provided in tlie
Ordinance, tlie City, its agents, employees, contractors, and consultants sliall liave tlie riglit of
ingress and egress to tlie Stormwater Facilities Area for tlie purpose of inspecting tlie Facilities
to ensure tliat tlie Facilities are being properly n'iaintained, are contii'niing to perfonn in an
adequate mai'uier (as reasonably determined by the City Engii'ieer or liis or lier designee), and are
in compliance witli tlie Ordinance, tlie SWMP and any an'iei'idments tliereto approved by tlie City
and all ot)ier applicable laws.
6. No Barriers. Wliile tliis Agreement is in effect, Covenantor sliall not erect, nor permit to
be erected, any building or structure of any kind withii'i tlie Stormwater Facilities Area, nor s]'iall
Covenantor fill or excavate witliin tlie Stormwater Facilities Area witliout City's prior written
consent wliicli sliall not be ru'ireasonably witlilield, brit inay be conditioned LIPOII SIICII
reqriirements as City Engiiieer determines are reasonably necessary or desirable to ensure proper
functioning of tlie Facilities.
7. Default and Reinedies. If following delivery of written notice from City and tl'ie
expiration of a tliirty (30) day cure period (except in tlie event of an immediate tl'ireat to public
liealtli and safety in wliic)i case Covenantor sliall conaimence and complete corrective action as
soon as possible following receipt of notice from tlie City), Covenantor fails to correct any defect
in tlie Facilities in accordance witli t]ie approved desigii standards, tlie SWMP, tlie Ordinance,
and all otlier applicable state, federal, and local laws, rules, and regulations, or Covenantor
otlierwise fails to comply wit)i tlie maintenance and repair obligations set foit]i in t]ie SWMP and
tliis Agreement, tlie City sliall liave tlie right upon delivery of forty-eiglit (48) liorirs' prior
Template Exliibit C
written notice (except in the event of an inunediate tlireat to public liealtli and safety in wliicli
case no notice sliall be required) to enter tlie Stormwater Facilities Area for tlie prirposes of
inaintaining and repairing tlie Facilities at Covenantor's expense, and Coveiiaiitor s]'iall be
obligated to reimburse City for tlie cost of all sucli work, including, witliout limitation, tlie cost
of City staff time, witliin tliirty (30) days following City's delivery of an invoice t]ierefor,
togetlier uiitli documentation of City's costs and expenses incurred in connection witli t)ie
perforinance of sucli work. If sucli costs are not paid witliin tlie prescribed time period, tlie City
may assess Covenantor tlie cost of tlie work, and said assessment sliall be a lien against tlie
Property or may be placed on tlie propeity tax bill and collected as ordinary taxes by tlie City. In
addition to tlie foregoing, tlie City inay pursue any otl'ier remedies provided under law or in
equity, including witliout limitation, ex parte applications for temporary restraining orders,
preliminary injunctions and permanent ii'ijunctions enjoining any sucli violation or attempted
violation or default, an order for specific performance, civil and criminal penalties, and tlie
remedies set fortli in Sections 9.18.190, 9. 18.230 and 9. 18.250 of tlie Ordinance. All sucli
remedies sliall be cumulative and not alteianative.
8. 7 To tlie fullest exteiit allowed by law, Covenantor sliall indemnify and liold
liari'nless CITY, its City Cormcil, boards and commissions, officers, officials, agents, employees,
servants, consultants and vohuiteers (liereinafter, "Inden'initees") 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 deatli of any person, damage to propeity, or liability for
otlier claims, stop notices, demands, causes of actions and actions, arising orit of or in any way
related to t]ie ownersliip, operation, use of tlie area, inaintenance, or failure to maintain, tlie
Facilities, or tlie Covenantor's performance or nonperforinance of liis/lier duties under tl'iis
Agreement, or from negligent acts or omissions or willful misconduct of Coveiiantor, its agents,
employees, contractors, or subcontractors. Covenantor sliall, at liis/lier own cost and expense,
defend any and all claims, actions, suits or legal proceedings tliat may be brouglit against tlie
City or any of tlie Indemnitees (witli corincil acceptable to City) in connection witli tliis
Agreement or arising out of Covenantor's performance or nonperforinance of liis/lier duties and
obligations liereunder, except to tlie extent any of tlie foregoing is caused by tlie negligence or
willfril misconduct of t)ie CITY or tlie CITY'S agents, emplo)iees and independeiit contractors.
9. Obligations and Responsibilities of Covenantor. Initially, tlie Covenantor named above
sliall be solely responsible for tlie performance of tlie obligations required under t]iis Agreement
and for tlie payment of any and all fees, fines, and penalties associated witli sucli performance or
failure to perform under tliis Agreement. Notwitlistanding ai'iy provisions of tliis Agreeinent to
tlie contrary, upon tlie recordation of a deed or otlier instrument of sale, transfer or otlier
conveyance of fee simple title to tlie Property or any portion tliereof (a "Transfer") to a t]iird
party, t)ie Covenantor sliall be released of its obligations and responsibilities under tl'iis
Agreement accruing after tlie date of sucli Transfer to tlie extent suc]i obligations and
responsibilities are applicable to tliat portion of tlie Property ii'icluded in sucli Transfer.
10. Property Transfer. Notliing liereii'i sliall be construed to proliibit a transfer of tlie
Property or any part t]'iereof by tlie Covenaiitor to subsequent owners and assigns.
Template Exliibit C
11. Termination and Release of Agreement. In tlie event tliat tlie City determines, in t)ie
exercise of its sole discretion, at any future time t]iat tlie Facilities are no longer required, tlien it
promptly sliall so notify tlie Covenantor or its successors and/or assigns in writing, and at tlie
written reqriest of tlie Covenantor, tlie City sliall execute a terininatioi'i and release of tliis
Agreement wliicli tlie Covenai'itor s]iall carise to be recorded in tlie Official Records at
Covenantor's sole expense.
12.Miscellaneoris.
12.1 Notices. Except as otlierwise specified lierein, all notices, demands, requests or
approvals to be sent pursuant to tliis Agreement sliall be inade in writing, and sent to tlie Parties at
tlieir respective addresses specified below or to suc]i otlier address as a Party may designate by
written notice delivered to t]ie otlier Party in accordance witli tliis Section. All sucli notices sliall
be sent by: (a) personal delivery, in whic)i case notice is effective upon delivery; (b) certified or
registered inail, return receipt requested, in wliicli case notice sliall be deemed delivered upon
receipt if delivery is confirmed by a return receipt; (c) nationally recognized overniglit coririer,
witl'i cl'iarges prepaid or cliarged to tlie sender's account, in wliicli case notice is effective on
delivery if delivery is confirmed by tlie delivery service; or (d) postage prepaid registered or
certified mail, in wliic)i case notice sliall be deemed delivered 011 tlie second business day after tlie
deposit tliereof witli tlie U.S. Postal Service.
City:
City of Cupertino
10300 Torre Ave
Cupertino CA 95014
Attention: Public Works Director
Witli copy to:
City of Cupertino
10300 Torre Ave
Cupertino CA 95014
Attention: City Attorney
Covenantor:
12.2 Attorneys' Fees. In tlie event tliat eitlier Party institutes legal action or arbitration
Template Exliibit C
against the other to interpret or enforce t)iis Agreement, or to obtain damages for any alleged
breacli liereof, tlie prevailing Party in sucli action or arbitration sliall be entitled to reasonable
attorneys' or arbitrators' fees in addition to all otlier recoverable costs, expenses and damages.
12.3 Governing Law: Venue. Tliis Agreement sliall, in all respects, be governed,
construed, applied, and enforced in accordance witli t]ie laws of tlie State of California wit]iout
reference to its clioice of laws provisions. Any disprite related to t)ie interpretation or
enforcement of tliis Agreement sliall be lieard in courts liaving jurisdiction in Santa Clara
County, California.
12.4 Fuitlier Assurances. City and Covenantor sliall eacli execute, acknowledge and
deliver to tlie otlier sucli otlier documents and instruments, and take sucli otlier actions, as eitlier
sliall reasonably request as may be necessary to fully effectriate tlie teri'iis and provisions of this
Agreement.
12.5 Entire Agreemei'it. Tliis Agreement, toget)ier witli tlie SWMP, constitutes tlie
entire agreemei'it of tlie Parties witli respect to tlie subject matter contained ]'ierein and supersedes
all prior written or oral agreements wit]i respect tliereto.
12.6 Severability. In tlie event any part or provision of tliis Agreement sliall be
determined to be invalid or unenforceable rinder tlie laws of tlie State of California, tlie
remaining portions of this Agreement tliat can be separated from tlie invalid or, unenforceable
provisions sliall, nevertlieless, continue in full force and effect.
12.7 No Waiver. Any waiver by City of any term or provision of tliis Agreement must
be in writing. No waiver sliall be implied from any delay or failure by City to take action on
any breacli or default ]iereunder or to pursue any remedy allowed under this Agreement or
applicable law. No failure or delay by City at any time to require strict perforinance by
Covenantor of any provision of tliis Agreement or to exercise any election contained lierein or
any riglit, power or remedy liereunder sliall be construed as a waiver of any otlier provision or
any succeeding breacli of tlie same or any otlier provision liereof or a relinquislunent for tlie
future of SIICII election.
12.8 Recordation; Ainendments. City, at Covenantor's expense, sliall cause tliis
Agreement to be recorded in tlie Official Records of Santa Clara Cormty, California ("Official
Records") promptly following execution liereof. Tliis Agreemei'it may be amended in wliole or
in part OIIIY by mutual written agreement. Any sucli ainendment sliall be recorded in tlie Official
Records.
12.9 Relationship of Parties. Neitlier Covenantor nor any of its contractors, employees
or agents s)iall be deemed to be agents of City in connection witli tlie perforinance of
Covenantor's obligations under tliis Agreement. Notliing in tliis Agreement is intended to or
shall establish tl'ie Parties as partners, co-ventrirers, or principal and agent witli one anotlier. City
neitl'ier undertakes nor assumes any responsibility or duty to Covenantor (except as expressly
Template Exliibit C
provided in tliis Agreement) or to any t]iird paity witli respect to tlie Facilities.
12. 10 Headings: Construction; Statutory References. Tlie lieadings of tlie sections and
paragraphs of tliis Agreement are for coiwenience only and sliall not be used to interpret tliis
Agreement. Tliis Agreement is tlie product of negotiation between tlie Parties. T]ie language of
tliis Agreement s]'iall be construed as a wliole according to its fair ineaning and not strictly for or
against any Party. Any rule of construction to tlie effect tliat ambiguities are to be resolved
agaiiist the drafting party sliall not apply in interpreting tliis Agreement. All references in tliis
Agreement to particular statutes, regulations, ordinances or resolutions of tlie United States, tl'ie
State of California, or tlie City of Cupertii'io s]iall be deemed to include tlie same statute,
regulation, ordinance or resolution as liereafter amei"ided or renumbered, or if repealed, to sucli
otlier provisions as may t]iereafter govern tlie saine subject. Tlie recitals above and ex]iibits
attaclied liereto are a substantive part of t]iis Agreement and are liereby incorporated lierein.
12.11 Perinits and Licenses; Compliai'ice witli Law. Covenantor, at its expense, sliall
comply wit]i all applicable legal requirements, including all federal, state, and local laws and
regulations (including City ordinai'ices, regulations and resolutions, and requirements of otlier
agencies uiitli jurisdiction), wliet]ier or not said laws or regulations are expressly stated in tliis
Agreement, and obtain and maintain all necessary perinits and licenses reqriired in order to own,
operate and maintain tlie Facilities.
12.12 Liens. Covenantor s]iall pay, wlien due, all persons furnisliing labor or materials in
coi'uiection wit]i any work to be performed by or on belialf of Covenantor related to tlie Facilities,
and sliall keep City's interests in tlie Stormwater Facilities Area free and clear of any related
meclianics' liens.
12.13 Joint and Several Liability. If Covenantor consists of more tlian one person or
entity, tlie obligations of sucli persons and entities shall be joint and several.
12. 14 Counterparts. Tliis Agreemeiit may be executed in one or inore counterpaits, eacli
of wliicli sliall be deemed to be an original, and all of wl'iicli taken togetlier sliall constitute one and
t]'ie same instrument.
SIGNATURESON FOLLOWING PAGE(S)
Template Ex)'iibitC
IN WITNF,SS WHEREOF, tlie Parties liave executed tliis Agreement as of t]ie date first
above written.
COVENANTOR:
BY:
Nai'iie:
Title:
(Notary acknowiecigmenl to be attached)
CITY:
CITY OF CUPERTINO, a municipal corporation
BY:
Name:
Title:
(Molar)i achnowiedginenl to be aitaclqed)
ATTEST:
Cty C erk
APPROVED AS TO FORM:
Christoplier D. Jensen
City Attorney
OAK #4824-CD 68-604') v4
Template Attacliment D
RECORDED AT THE REQUEST OF
And
WHEN RECORDED RETURN TO:
SPACE ABOVE FOR RECORDER'S USE ONLY
MAINTENANCE AGREEMENT
APN
THIS MAINTENANCE AGREEMENT ("Agreement") is made and entered into tliis
day of 20 , by , ("Declarant"), and the City of
Cupeitino ("City").
RECIT ALS:
Tlie following recitals are a substantive poition of tliis- Agreement:
A. Tlie real propeity and iinprovements tliat comprise is located at
witl'iin tlie City of Cupertino ("City"), County of Santa Clara, State of
Califori'iia.
B. As set fortli , tlie provisions of tliis Agreement are intended to and sliall run witl'i tlie
Project and be bii'iding upon all owners, successors and assigns of the Project, or any poition.
C. Tlie purpose of tliis Agreement is to allocate tlie costs of maintenance, repair and
replacement between Declarant and tlie City of ceitain improvements, including lai'idscaping, tliat
is situated on real propeity owned by City along in front of tlie Project, and
to establisli ceitain criteria and procedures for tlie accomplisl'iment of maintenance, repair and
replacement.
NOW, THEREFORE tlie parties liereto agree as follows:
1. Covenants Rui'ining witli tlie Land; Propeity Subject to Agreement: All of the real
propeity described in Exhibit "A" sliall be subject to tl'iis Agreement. It is intended tliat tlie
provisions of tliis Agreement sliall run witli tlie laiid and sliall be binding on all parties liaving or
acquiring any rig)it, title or interest in tlie real propeity described in Exhibit "A" or any poition
and s)'iall be for tlie benefit of eacli owner of any of tlie parcels or any portion of tlie property and
sl'iall inure to t)ie benefit of and be binding upon eacli successor in interest of tlie owners. Eacli
of tlie limitations, easements, obligations, covenaiits, conditions, and restrictions contained lierein
sliall be deemed to be, and s)iall be construed as equitable servitudes, enforceable by any of the
owners of any of t)ie property subject to tliis Agreement against any otlier Owner, tenant or
occupant of tlie property, or any portion.
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Template Attac)iment D
2. Responsibility for Cost of Repair, Replacement and Maintenance: Declaraiit, or its
successor in interest, sliall, at its sole cost aiid expense, maintain, repair, replace, remove and
keep in excellent, like new condition all improvements, street trees, paver blocks, landscaping,
aiid irrigation system located On tlie poition of tlie City's property tliat abuts aiid fi'onts tlie Project
("tlie Frontage Area of tlie Project") along to back of curb line, excepting tlierefroin
tlie standard priblic sidewalk abutting tlie property line of t)ie Prqject wliicli sliall remain tlie
inaintenance responsibility of tlie City. Exliibit "B" sliows tlie poition of tlie City's propeity for
wliicli Declarant is responsible for maintenance hereunder.
3. Definitions of Repair, Replacement and Maintenance: Tlie repair, replacement and
n'iaintenance to be undeitaken aiid perforined under tliis Agreement s)iall include all work
necessary to maintain tlie Frontage Area of tlie Project described in paragrapli 2 aiid delineated on
Exliibit "B" in excellent, like new aiid riseable condition under all weatlier conditions. Tlie
Frontage Area of tlie Project sliall be maintained to tlie standards, specifications and condition to
wliicli, at a miniimim, tliey were originally constructed as evidenced by plaiis and specifications
on file witli tlie City (if Cupeitino and/or provided to tl'ie Declarant. Tlie improvements sliall be
inaintained to a liigli standard tliat is con'iparable to otlier improvements at similar liigli qriality
developinents in tlie City and along Steven Creek Borilevard and Maiy Avenue. To accomplisli
tlie maintenance, Deci!ant sliall eitlier provide licensed, qualified personnel to perform tlie
maintenance work or contract witli licei'ised, qrialified companies for tliis, and any otlier iteins
necessary to comply witli tlie requirements of tliis Agreement.
4. Decisions Regarding Performance of tliis Agreement: All decisions regarding the need
for inaintenaiice, tlie iinplementation, tlie removal, and any paiticular other matters relating to tlie
Frontage Area of tlie Project sliall be determined by tlie City.
5. To the fullest extent allowed by law, Declarant sliall indemnify and liold
liarmless CITY, its City Council, boards and commissions, officers, officials, agents, employees,
servants, consultants and vohuiteers (liereinafter, "Indenmitees") 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 deatli of any person, damage to propeity, or liability for
otlier claiins, stop notices, demaiids, causes of actions and actions, arisii'ig out of or in any way
pertaining to, or related to tlie rise and landscape n'iaintenaiice by Declarant or Declarant's
employees, officers, officials, agents or independent contractors of tlie Frontage Area of tlie
Project described in paragraph 2 and delineated on Exl'iibit "B", or from negligent acts or
omissions or willful misconduct of Declarant, its agents, employees, contractors, or
subcontractors. Declarai'it sliall, at liis/lier own cost and expense, defend aiiy aiid all claims,
actions, suits or legal proceedings tl'iat may be brouglit against tlie City or any of tlie Indemnitees
(witli council acceptable to City) in coiuiection witli tl'iis Agreement or arising out of Declarant's
performance or nonperforinance of liis/lier duties and obligations liereui'ider, except to tlie extent
aiiy of tlie foregoing is caused by tlie i'iegligei'ice or willful inisconduct of tlie CITY or tlie
CITY'S agents, einployees and independent contractors.
6. Insurance Requirements: Declarant sliall not conunence work under tliis Agreen'ient until
it lias obtained all iiisurance required. Declarant s]'iall inaintain Worker's Compensation
Insurance, and if applicable sliall also reqriire all subcontractors to provide Worker's
Compensation Insurance. Declaraiit sliall maintain Compreliensive General Liability in an
amorint of not less tlian $1,000,000.00
7. Attorney's Fees: In t)ie event tliat any paity institutes legal action or arbitration against
tlie otlier to interpret or enforce tliis Agreeinent, or to obtain damages for any alleged breach, tlie
2
Template Attaclunent D
prevailing patty in tlie action or arbitration sliall be entitled to reasonable attorneys' or arbitrators'
fees in addition to all otlier recoverable costs, expenses ai'id damages.
8. Furtlier Documents: Tlie parties covenant and agree tliat tliey s]iall execute furtlier
documents and instructions as sliall be necessary to fully effectuate tlie terins and provisions of
tliis Agreement.
9. Entire Agreement: Tliis Agreement constitutes tlie entire agreement of tlie parties wit]i
respect to tlie subject matter contained lierein and supersedes all prior agreements, wlietlier
written or oral. There are 110 representations, agreements, arrangements or undertakings, oral or
written, w)iicli are not fully expressed lierein.
10. In tlie event aiiy part or provision of tliis Agreement sliall be detern'iined to
be invalid or ruienforceable under tlie laws of tlie State of California, tlie remaining portions of
this Agreement which can be separated from tlie invalid, unenforceable provisions sliall,
nevertlieless, continue in full force and effect.
11. No Waiver: Tlie waiver of any covenai'it contained lierein s]'iall not be deemed to
be a contimiing waiver of tlie same or any ot)ier covenant contained lierein.
12. Recordation: It is anticipated tliat tliis Agreement sliall be recorded aiid sliall be executed
and acknowledged in proper recordable form.
13. Amendment: Tlffs Agreement may be amended in wliole or in pait only by mutual
written agreement. Any amendment sliall be recorded in Santa Clara County, California. In tlie
event any conflict arises between tlie provisions of aiiy sucli amendment and any of tlie
provisions of any earlier document or documei'its, tlie most recently duly executed and recorded
amendment sliall be controlling.
Executed tlie day and year first above written.
DECLARANT:
BY:(notary acknowledgement attaclied)
CITY OF CUPERTINO
BY:
Name:
Title:
Approved as to Forin
Cliristolilier D. Jensen
City Attorney
3