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HomeMy WebLinkAbout03-16-2011 SUPPLEMENTAL COUNCIL AGENDAMemo To: City Council From: Ann Sulliva Date: March 16, 2011 Re: Agenda Item 10 — FY 2011/12 Community Development Block Grant (CDBG) and Community Grant Funding Applications Attached is email correspondence the City Clerk's office received after the posting of the agenda/packet. Aww SuLLLVAw Ann Sullivan, CMC City Clerk City Clerk [Ann Sullivan] From: Linda Knox [Iknox98 @g mail. com] Sent: Tuesday, March 08, 2011 2:05 PM To: Howard Miller; Chuck Page; Jill Hunter; Emily Lo; Manny Cappello; City Clerk [Ann Sullivan]; Dave Anderson Subject: Support Shady Shakespeare! Follow Up Flag: Follow up Flag Status: Flagged Dear Saratoga Council Members, I am writing to support the recent funding application from the Shady Shakespeare Theater Group. I have attended the productions for the past four years (along with a group of about 8 friends) and have personally donated and participated in fund raising efforts to support the amazing cultural work that the theater group brings to the community. Just this year, they are having to start to charge for tickets because they couldn't secure funding. Every performance is a packed house and almost all of us attendees purchase and eat at local Saratoga establishments before and after the shows, contributing to the local economy. Please consider supporting the amazing exposure to minds young and old which the greatest writer in English history brings through the talent and passion of the Shady Shakespeare Theater Group. Yours hopefully -Linda Knox Memo To: City Council From: Ann Sullivan Date: March 16, 20 Re: Agenda Item 11— SummerHill Creekside Homes Pollution Legal Liability Coverage Options Attached is a SUPPLEMENT to the original staff report for the above item that the City Clerk's office received after the posting of the agenda/packet. Aww S kLLLVA w Ann Sullivan, CMC City Clerk SARATOGA CITY COUNCIL MEETING DATE: March 16, 2011 AGENDA ITEM: DEPARTMENT: Recreation & Facilities CITY MANAGER: Dave Anderson PREPARED BY: Michael Taylor DIRECTOR: Michael Taylor Richard Taylor, City Attorney Jonathan Wittwer, Assistant City Attorney SUBJECT: SUPPLEMENT - SummerHill Creekside Homes Pollution Legal Liability Coverage Options RECOMMENDED ACTION: Staff recommends the Council authorize staff to amend the SummerHill Subdivision Improvement Agreement (SIA) to replace the Pollution Legal Liability (PLL) insurance requirement with alternative terms described in the Staff Report. REPORT SUMMARY: SummerHill Homes prefers to amend the SIA in accordance with the attached language (see particularly the fourth "WHEREAS" clause and Section 13(a) regarding the Special Provision re Indemnification for Pollution Legal Liability). Staff has determined that this would fall within the parameters of the "Public Agency standard" for dealing with pollution legal liability. In fact, the approach is largely based on the City of San Jose "Environmental Warranty" provision provided in the Staff Report for this item. Removed is the inspection provision under clause (5) but leaving it clear that the City is not agreeing to waive its rights to simply obtain the information via discovery in the litigation which would probably ensue if SummerHill did not honor its indemnification obligation. The Warranty would be limited in the same manner as the Indemnification (e.g., $2M, 10 years, etc.). Saratoga would have the advantage of the Special Provision re Indemnification for Pollution Legal Liability in addition to the Environmental Warranty patterned after the City of San Jose Subdivision Improvement Agreement. FISCAL IMPACTS: The recommendation to require indemnification or insurance for Pollution Legal Liability would have no additional fiscal impact on City funds at this time. CONSEQUENCES OF NOT FOLLOWING RECOMMENDED ACTION: There would be no change in the existing agreement and staff would require Pollution Legal Liability Insurance as stated in the original Subdivision Improvement Agreement. Page 1 of 2 FOLLOW UP ACTION: As directed by Council. ATTACHMENTS: Attachment A — Revised Subdivision Improvement Agreement (SIA) Page 2 of 2 ATTACHMENT A RECORDING REQUESTED BY: CITY OF SARATOGA AFTER RECORDATION RETURN TO: CITY OF SARATOGA Attn: City Clerk 13777 Fruitvale Avenue Saratoga, CA 95070 R RECORDER'S USE SUBDIVISION IMPROVEMENT AGREEMENT THIS AGREEMENT is entered into effective , 2011 ( "Effective Date ") by and among SummerHill Creekside LLC (hereinafter referred to as "Owner ") and SummerHill Creekside LLC (hereinafter referred to as "Subdivider ") and the City of Saratoga (hereinafter referred to as "City ") with reference to property known as Assessor's Parcel Number(s): 397 -27 -030 as described in more detail in Exhibit A hereto (the "Property "). Furthermore, as to the Special Provision re Indemnification Obligation for Pollution Legal Liability under Section 13(a) only, this AGREEMENT is by and among the City and SummerHill Creekside LLC and SummerHill Homes, LLC (collectively referred to as "Owner" for the purposes of such Special Provision re Indemnification Obligation only) and each of those two entities shall be jointly and severally obligated to the responsibilities of Owner set forth in the "Special Provision" under Section 13(a). RECITALS WHEREAS, in connection with the development of the subdivision of the Property (hereinafter known as "subject subdivision "), Subdivider has previously filed with the City of Saratoga Community Development Director a tentative map of said subdivision (referenced by the City as Application No. 06 -017, Application No. EXT09 -0002 and Application No. MOD 10- 0002),), which said tentative map was duly approved by City by Resolution No. 06 -017 dated April 25, 2007; Resolution No. 09 -029 dated June 10, 2009; and Resolution No. 10 -022 dated August 11, 2010; WHEREAS, Subdivider has submitted, for approval and acceptance, a parcel map or final map (hereinafter "Map" as applicable) of the subject subdivision; WHEREAS, Owner and Subdivider have each requested approval of said Map prior to the completion of improvements of all public facilities and other improvements which are a part of or appurtenant to the subject subdivision, including, but without limiting the foregoing, all required grading, erosion control, streets, street lights, utilities, traffic safety devices, paving, curbs and gutters, sidewalks, pathways, bikeways, catch basins, pipes, culverts, storm drains, sanitary sewers, street trees and street signs, water systems and fire hydrants all in accordance with and as required by the plans and specifications for all of said improvements (collectively, ATTACHMENT A the "Works of improvement "), which plans and specifications were prepared by , Civil Engineer on behalf of Subdivider and Owner, approved by the City Engineer and now on file in the Public Works Department. WHEREAS, for the purposes of the Indemnification Obligation for Pollution Legal Liability under Section 13(a), SummerHill Creekside LLC and SummerHill Homes, LLC, and each of them, represent and warranty to the City as of the date hereof that: (1) SummerHill Homes was formed in 1976 and is long- established homebuilding company; (2) SummerHill Creekside LLC is the subdivider listed with the California Department of Real Estate for Saratoga Creek Town Homes (aka Creekside at Saratoga) a Planned Development filed 12/07/2010 as #137087SA — F00; (3) SummerHill Homes, LLC: (a) is an existing business entity and intends to remain in business for at least ten years from the Effective Date of this Agreement; (b) currently has unencumbered assets reasonably sufficient and available to fund a pollution legal liability indemnification obligation up to the amount of $2,000,000; (c) agrees that its assets are available to indemnify the City under such Indemnification Obligation; and (4) will maintain records of its assets for ten years from the date of this Agreement; (4) Neither the Property or Owner are in violation of any environmental law, nor is such property or SummerHill Creekside, LLC or SummerHill Homes, LLC subject to any existing, pending or threatened investigation by any federal, state or local governmental authority under or in connection with the environmental laws relating to such property; (5) Neither SummerHill Creekside, LLC nor SummerHill Homes, LLC, nor any other person with permission from either to be on the Property (including the property upon which the Works of Improvement are to be constructed) has used, generated, manufactured, produced, or released, on, under, or about such property, any Hazardous Material (as defined in Section 13(a) below) except in compliance with all applicable environmental laws; (6) Neither SummerHill Creekside, LLC nor SummerHill Homes, LLC have caused or permitted the release of, any Hazardous Material on the property to be dedicated or the migration of any hazardous substance from or to any other property adjacent to, or in the vicinity of, the property upon which the Works of Improvement are to be constructed; 2 ATTACHMENT A (7) The prior and present use of the property by either SummerHill Creekside, LLC or SummerHill Homes, LLC upon which the Works of Improvement are to be constructed has not resulted, in the release of any Hazardous Material on the property upon which the Works of Improvement are to be constructed; and (8) All persons executing the above representations and warranties hereby represent and warrant to the City of Saratoga, and SummerHill Creekside, LLC and SummerHill Homes, LLC hereby represent and warrant, that the signators hereto have the legal power, right and authority to execute this warranty on behalf of SummerHill Creekside, -LLC or SummerHill Homes, LLC and that the signators hereto have sufficient knowledge or expertise, either personally, through reasonable inspection and investigation of the property, or through reasonable reliance upon the investigation and professional opinion of environmental experts on behalf of SummerHill Creekside, LLC and SummerHill Homes, LLC, to make the representations and warranties herein, and that no consent of any other party is required to execute this Agreement making such representations and warranties on behalf of SummerHill Creekside, LLC and SummerHill Homes, LLC to the City of Saratoga. Any claim by the City for breach of any of the representations and warranties set forth in (4), (5), (6), (7) and/or (8) shall be made subject to and pursuant to the terms and provisions of the Special Provision re Indemnification Obligation for Pollution Legal Liability in Section 13(a) hereof, including without limitation, the exclusions, monetary cap and sunset provisions set forth therein. NOW, THEREFORE, in consideration of the above RECITALS and the mutual promises and covenants of the parties hereto, it is agreed as follows: 1. JOINT AND SEVERAL DUTIES Owner and Subdivider are hereinafter collectively referred to as "Developer" in this Agreement, but each shall remain jointly and severally liable for compliance with the terms of this Agreement. However, only the Subdivider shall be responsible for providing the security required by this Agreement. Developer hereby enters into an agreement with City, by the terms of which agreement Developer agrees to have the Works of improvement required by City completed on or before one year from the effective date of this Agreement in accordance with the Saratoga City Code (hereinafter "City Code "). 2. FILING OF FINAL MAP City, for and in consideration of the execution of this Agreement and fulfillment by Developer of the terms set forth herein, shall accept for filing the Map for the subject subdivision. 3 ATTACHMENT A 3. DEVELOPER'S DUTIES REGARDING IMPROVEMENT WORK Developer hereby, agrees that: (a) Prior to Developer commencing work Developer shall provide a Notice of Commencing Work to City. If Developer contemplates requesting a partial release, the Notice of Commencing Work shall include a schedule of work and a cost breakdown for each Work of improvement acceptable to the City Director of Public Works. (b) All Works of improvement shall be constructed by Developer at Developer's sole cost and expense in accordance with the improvement plans and specifications prepared by Developer's Civil Engineer as previously approved by the City Engineer in a good and workmanlike manner, in accordance with all City standards, specifications and applicable laws, rules and regulations, to the satisfaction of the Director of Public Works. Developer agrees that the Director of Public Works shall have the right to reject any or all of the work to be performed under this Agreement if such work does not conform with the plans and specifications, City standards, or any applicable law, rule, or regulation; (c) The Works of improvement shall be maintained in good condition and repair and be guaranteed against any defects in material and workmanship for a period of one year from the date of final approval by the City (or such extended period of time thereafter as is necessary to repair any such defects to the satisfaction of the City); (d) Developer shall cause to be made and pay for soil tests conducted by a reputable soils testing laboratory to determine gradation, bearing, and resistance value of soils within the subject subdivision from which to determine the nature of the Works of improvement necessary. Developer shall also cause to be made and pay for all necessary tests including, but not limited to, necessary tests under Section 19 (Earthwork), Section 26 (Aggregate Bases), and Section 39 (Asphalt Concrete) of the most current edition of Standard 'Specifications issued by the California Department of Transportation as of the Effective Date of this Agreement. (e) Developer shall pay to the City the cost of inspecting the Works of improvement including the costs of staff time and any, consulting services determined necessary by the Director of Public Works; (f) Developer shall furnish to the City the improvement security as required in Section 5 of this Agreement and City Code Section 14- 60.020; and (g) Developer shall furnish to the City the release, indemnity agreement and insurance coverage required by Section 11 of this Agreement and City Code Section 14- 05.055. 4. TIMING OF CONSTRUCTION OF WORKS OF IMPROVEMENT 4 ATTACHMENT A Developer hereby agrees to construct all required Works of improvement as follows: (a) All required on -site and off -site improvements shall be complete to the satisfaction of the Director of Public Works, prior to issuance of the final inspection approval for any structure built on any parcel within the subject subdivision and: (1) within one year from the date of City's approval of subject subdivision, or (2) prior to (specify date), if initialed and dated by the Director of Public Works here at or prior to the Effective Date of this Agreement. (b) All off -site work (if any), shall be done prior to or concurrently with on -site work, unless otherwise expressly specified by the conditions of the tentative map for the subject subdivision, and initialed by the Director of Public Works here ; (c) The time for completion may be extended by the Director of Public Works in his /her sole discretion, for good cause shown in writing by Developer. The Director of Public Works may, in his /her sole discretion, allow up to three extensions of this Agreement of up to 180 days each, provided that all requirements under this Agreement or imposed by law are met by Developer. Any further extension requires amendment and approval of this Agreement by the City Council; (d) In the event that Developer fails to complete the Works of improvement within the time specified herein, City may complete said work and Developer promises to pay City the full cost and expenses thereof or City may recover the same from Developer, the surety(s) and /or the holder(s) of improvement security, including reasonable attorney fees. City, in its sole discretion, may require Developer, the surety(s), and /or the holder(s) of improvement security to pay City in advance, sufficient monies to cover City's cost in completing construction of the improvements; and (e) In the event Developer has not completed the required works of improvement within the period of time allowed by this Agreement (including any duly obtained extensions), Developer shall not proceed further with any work of improvement unless and until approval to do so is obtained from the City. The City reserves the right, upon each renewal, to increase the security amounts to reflect increases in material, labor and equipment prices. Notwithstanding the foregoing, it is understood that in the event the Developer fails to complete any work of improvement within the required period of time that the City may proceed against the securities required by Section 5 of this Agreement, to obtain completion of such work of improvement, or may initiate proceedings to revert the subdivided property to acreage. 5. SECURITY (a) Developer shall furnish to City good and sufficient security for: (1) faithful performance and guarantee of the work; and (2) payment of contractors, subcontractors and persons furnishing labor, materials or equipment. E ATTACHMENT A (b) The security shall be one or more of the following forms at the option of, and subject to approval by, the City: (1) A bond (or bonds) of a duly authorized corporate surety in the forms attached hereto as Exhibits B and C respectively, each issued by a corporate surety duly authorized to transact business in the State of California ( "State "); or (2) A deposit held by the City in cash or, if approved by the City Manager, negotiable bonds of the kind approved for securing deposits of public monies; or (3) An instrument of credit from an agency of the State, Federal or local government when any agency of the State, Federal, or local government provides at least twenty percent (20 %) of the financing for the portion of the act or agreement requiring security, or from one or more financial institutions subject to regulation by the State or Federal government and pledging that the funds necessary to carry out the act or agreement are on deposit and guaranteed for payment, or a letter of credit or set aside letter issued by such a financial institution. The form and content of such instrument, letter of credit or set aside letter shall be subject to prior approval by the City Attorney; or (c) The security furnished by the Developer shall be in the following amounts and for the following purposes: (1) An amount equal to one hundred percent (100 %) of the total estimated cost of the improvement or of the act to be performed, as determined by the Director of Public Works, securing faithful performance of the Works of improvement and guaranteeing against any defective work or labor done or defective materials furnished (herein "the Faithful. Performance Security "). Liability upon the Faithful Performance Security shall both include, and be limited to the matters specified in Section 66499.9 of the California Government Code; and (2) An amount equal to one hundred percent (100 %) of the total estimated cost of the Works of improvement as determined by the Director of Public Works, securing payment to the contractor, the subcontractors, and persons furnishing labor, materials or equipment for the Works of improvement or the performance of the required act(s) (herein "the Payment Security "); (3) As part of the obligation guaranteed by each security and in addition to the face amount of the security, there shall be included costs and reasonable expenses and fees, including reasonable attorneys' fees, incurred by the City in successfully enforcing the obligation secured; and (4) At least ten percent (10 %) of the Faithful Performance Security and Payment Security shall be provided in the form of a deposit held by the City in cash. (d) The Faithful Performance Security required under this Section shall remain in full force and effect for a period of one year following the completion of the work as continuing security for the Developer's guarantee against any defective work or labor done or defective materials furnished, and thereafter until all deficiencies in construction, maintenance and repair have been corrected to the satisfaction of the 0 ATTACHMENT A Director of Public Works and final acceptance of all work is granted by the City Council. Upon completion of the work, the Director of Public Works may, in his or her discretion, permit the Developer to reduce the amount of such Security if the Director of Public Works determines that a lesser amount will be sufficient to secure the Developer's obligation to correct any defects in workmanship or materials. (e) The Payment Security required under this Section shall, after final acceptance of the work and passage of the time within which claims of lien or nonpayment are required by law to be recorded, be reduced to an amount equal to the total claimed by contractors, subcontractors and all persons for whom claims of lien or nonpayment have been properly recorded and timely notice thereof given in writing to the City, and if no such claims have been recorded, the Payment Security shall be released in full. The reduction or release of security authorized herein shall not apply to any amount deemed by the City Manager to be necessary as security for costs, expenses and fees, including reasonable attorneys' fees that may be incurred by the City as a result of any breach of this improvement Agreement by the Developer. . (f) If the required improvements are financed and installed pursuant to a special assessment proceeding and the contractor has furnished a Faithful Performance Security and Payment Security as required by the special assessment act pursuant to which the improvements are being constructed, the improvement securities required under this Section may, in the sole discretion of the Director of Public Works be reduced by an amount corresponding to the amount of such securities so furnished by the contractor. (g) Any damage to Works of improvement or property as provided in Section 11 of this Agreement that occurs during or within one year after completion of the Works of improvement shall be completely repaired to the satisfaction of the Director of Public Works by Developer before release of improvement security. (h) Each security required in order to comply with this Agreement shall be maintained in full force and effect unless and until the obligation to provide such security is released, or partially released by the Director of Public Works in writing. (i) Release of each security by City shall be in compliance with Section 66499.7 of the California Government Code. (j) Where the performance of an obligation for which a security is required is subject to the approval of another agency, the City shall comply with Section 66499.8 of the California Government Code. 6. ACQUISITION OF EASEMENTS AND RIGHTS -OF -WAY Developer represents and warrants that it or City has all easements or rights -of -way necessary to complete the Works of improvement required by this Agreement with the exception of the following: %/ ATTACHMENT A Item of Work Affected APN Total Estimated Cost: Estimated Cost (If no easements or rights -of -way are required, Subdivider shall so indicate by initialing this Agreement here: (Subdivider's initials). The Developer is required, within ten (10) days of the Effective Date of this Agreement, to deposit with the City a cash deposit in the amount(s) of the Total Estimated Cost specified above (if any) for the acquisition of any easement or right -of -way needed for the works of improvement set forth in this Agreement. If any easements or rights -of way are required then the condemnation clause, attached as Exhibit D is hereby made a part of this Agreement. 7. EROSION CONTROL Developer shall take all necessary actions during the course of construction of all improvements to prevent erosion damage to adjacent properties or improvements (including, but not limited to, City streets and other City infrastructure or property). It is understood and agreed that in the event of failure on the part of Developer to prevent erosion, City may do the work of improvement and /or erosion protection measures on an emergency basis and Developer shall reimburse City for the actual expenses incurred (including administrative and /or legal expenses) within thirty (30) days after City mails a billing statement for such expenses to Developer. If such reimbursement is not timely made, City is entitled to obtain such reimbursement from Developer and /or to proceed against the Faithful Performance Security to cover City's expenses. Developer shall implement the subject subdivision project work and the Works of improvement in compliance with all applicable requirements of the National Pollutant Discharge Elimination System ( "NPDES ") permit issued to the Santa Clara Valley Urban Runoff Pollution Prevention Program ( "Program "), to govern the discharge of storm water and non storm water. All work shall also be in compliance with all other applicable Federal, State, and local laws and regulations. Compliance with the Program NPDES Permit requires the preparation and submission of a Storm Water Pollution Protection Plan ( "SWPPP "), or a Water Pollution Control Program (WPCP "), and the approval of same by the appropriate reviewing authority prior to the start of any work. Information on the requirements may be found at the City Public Works Department under Order No. 01 -119, or subsequent orders or changes to the Program NPDES Permit. Developer is required to implement best management practices during and after construction of the subject subdivision project work and the Works of improvement to minimize pollutant discharge for the development and life of all the work. ATTACHMENT A Developer shall provide City with a written document describing the operation and maintenance of storm water treatment controls, which may be a part of the CC &Rs, a Maintenance Agreement, or other recorded document. 8. EARLY RELEASE Where the total cost of the Works of improvement exceeds $100,000, Developer may from time to time request a certificate of partial completion of Works of improvement for the sole purpose of obtaining a partial reduction in the retained amount of the Faithful Performance Security. Requests for a certificate of partial completion of Works of improvement shall be made in writing to the Director of Public Works on forms provided by City. No such request shall be honored and no reduction in the retained amount of any improvement security shall be made during the existence of any default in satisfactorily completing any aspect of the Works of improvement. In no event shall any single reduction be less than twenty -five percent (25 %) of the total estimated cost of the Works of improvement, nor shall the total number of requests exceed three (3) in number nor shall the aggregate of all partial reductions exceed seventy -five percent (75 %) of the original amount of the improvement security. No certificate of partial completion of Works of improvement shall be construed: (1) to constitute acceptance of the Works of improvement referenced in the certificate by City prior to the time formal action is taken by City to accept such Works of improvement; (2) to constitute acceptance by City of any offer of dedication of any interest in real property prior to the time formal action is taken by the City Council to accept said dedication; (3) to constitute a waiver of any of the requirements contained in this agreement. The decision to issue a certificate of partial completion of Works of improvement shall be made by the Director of Public Works in his /her sole discretion. The determination of the Director of Public Works shall be final and conclusive. Any reduction in the amount of retained improvement security shall not reduce the obligations of Developer to City under this Agreement. In order for City to process a certificate of partial completion requesting reduction of the retained amount of the improvement security, Developer shall furnish to the Director of Public Works prior to or concurrent with the notice of commencing work, an itemized cost breakdown and/or adequate information for all items of improvement. 9. INDEPENDENT CONTRACTOR Developer agrees that, in making the required works of improvement, Developer is an independent contractor and not an employee or agent of City, and no person hired to furnish labor, materials, and /or equipment in connection with required works of improvement is an employee or agent of City. To the extent applicable, Developer shall comply with the requirements of the California Labor Code including but not limited to hours of labor, nondiscrimination, payroll records, apprentices, workers' compensation and prevailing wages. 10. TENTATIVE MAP The requirements of the tentative map shall not be overridden by the requirements of this Agreement. In the event of a conflict between the two, the City Engineer shall determine the most reasonable interpretation to assume satisfactory improvements for the benefit of the public. X ATTACHMENT A 11. PRESERVATION OF PROPERTY Developer shall exercise due care to avoid injury to existing roadway (whether public or private) improvements or facilities, utility facilities, adjacent property, and roadside trees and shrubbery that are not to be removed. Roadside trees and shrubbery; pole lines; fences; mailboxes; signs; markers and monuments; buildings and structures; conduits; pipe lines under or above ground; sewer and water lines; all roadway facilities; and any other improvements or facilities within or adjacent to any of the work, other than those to be removed in accordance with the plans and specifications, shall be protected from injury or damage. If ordered by the Director of Public Works, Developer shall provide and install suitable safeguards, approved by the Director of Public Works, to protect such property, facilities, or objects from injury or damage. If such property, facilities, or objects are injured or damaged by reason of Developer's operation, they shall be replaced or restored at the Developer's expense. The property, facilities, or objects shall be replaced or restored to a condition as good as when Developer entered upon the work, or as good as required by this Agreement, if any such property, facilities, or objects are a part of the work of improvement being performed under this Agreement. The Director of Public Works may make or cause to be made such temporary repairs as are necessary to restore to service any damaged roadway or other facility or object. The cost of such repairs shall be borne by Developer. It shall be the Developer's responsibility to ascertain the existence of any underground improvements or facilities that may be subject to damage in the course of performing the Works of improvement. A minimum of forty -eight (48) hours, or two working days, prior to beginning of construction, Developer shall notify Underground Services Alert ( "USA "), telephone 1 -800- 642 -2444, to have existing facilities marked in the field. 12. PRE- CONSTRUCTION SURVEY Developer shall provide pre- construction color photographs prior to providing City with Notice of Commencing work and upon completion of the Works of improvement, 35mm or larger film size, of the work site including surrounding areas. Each photograph shall be marked to indicate the date, name of work, and the location where the photograph was taken. Photographs shall be taken at location intervals as directed by the Director of Public Works or his /her designee. Developer shall provide a sufficient number of photos to show the condition of the property before commencing the works of improvement and after completion of such work. The Director of Public Works shall have the final word on the number of photos required. Prints shall be submitted to the Director of Public Works-in a three -ring photo album binder with clear plastic - covered fillers, four photos each side, grouped according to street, lateral, or line, and in sequence. Each group of prints shall be identified by a label that projects beyond the edge of the filler and is easily recognized. 10 ATTACHMENT A 13. RELEASE, INDEMNIFICATION, INSURANCE, AND ONE YEAR EXCLUSIVE RESPONSIBILITY (a) Release and Indemnification: Developer hereby releases and agrees to indemnify, hold and save City, its officers, employees, and agents harmless from and against any and all damage, injury, and /or death to persons and property, and any and all claims, demands, costs, losses, damages, injuries or liability, including attorney's fees, howsoever caused, resulting directly or indirectly from the performance or nonperformance of any and all work done or to be done or the compliance or noncompliance with any law pursuant to this Agreement, including without limitation any made or suffered by Developer or Developer's agents, employees, contractors, or subcontractors. Developer shall not be required to indemnify and hold harmless City as set forth above for (i) liability attributable to the sole fault of City, provided such sole fault is determined by agreement between the parties or the findings of a court of competent jurisdiction; or (ii) City's breach or default of any of its obligations established by this Agreement. Without limiting the generality of the foregoing indemnity, such indemnity obligation expressly extends to and includes any and all claims, demands, losses, damages, costs, expenses, fines, penalties, judgments or liability occasioned as a result of damages to adjacent property caused by the conduct of the Work of improvement. Special Provision re Indemnification Obligation for Pollution Legal Liability. Owner (which, as set forth above includes solely for purposes of this Special Provision re Indemnification Obligation for Pollution Legal Liability. SummerHill Creekside, LLC and SummerHill Homes, LLC and each of them), jointly and severally, agree to indemnify, defend and hold harmless the City, its officers, employees and agents from and against any claims, demands, damages, injuries, actions, liabilities, losses, costs and expenses, including, without limitation, reasonable attorneys' fees, arising from the release, disposal or discharge of Hazardous Materials (hereinafter defined) in, on or under the Property or adjacent property that is made or caused by Owner or Owner's agents, employees, contractors, subcontractors, or any other person with Owner's permission to be upon the Property (including the property upon which the Works of Improvement are to be constructed). The foregoing obligations of Owner shall not apply to the extent of any release, disposal or discharge of Hazardous Materials in, on or under the Property or adjacent property (a) which occurred before Owner acquired title to the Property or which occur after the time Owner both completes the Works of Improvement and no longer owns any portion of the Property; or (b) which are caused by or arise from the release, disposal or discharge of Hazardous Materials in, on or under the Property or adjacent property by: (1) any third party without Owner's permission to be upon the Property (including the property upon which the Works of Improvement are to be constructed); or (2) the City or any of its officers, employees and agents. Notwithstanding anything to the contrary set forth above, Owner's collective aggregate liability under this Special Provision shall in no event exceed Two Million Dollars 11 ATTACHMENT A ($2,000,000), and Owner's obligations under this Special Provision shall automatically terminate upon the tenth (10th) anniversary of the Effective Date of this Agreement, except solely for any claims which have been asserted in writing by the City against Owner under this Special Provision prior to such sunset date. Owner shall not be required to indemnify, defend, and hold harmless City as set forth above for liability attributable to the sole fault of City, provided such sole fault is determined by agreement between the parties or the findings of a court of competent jurisdiction. This Special Provision is for the sole benefit of the City, its officers, employees and agents and is not intended to benefit or be enforceable by any other person or entity. As used above, "Hazardous Materials" means any substance, material, waste, chemical, object, condition, living organism, mixture, compound or combination that: (i) is or may be hazardous to human health or to the safety of the environment due to its radioactivity, flammability, corrosivity, reactivity, explosivity, toxicity, carcinogenicity, mutagenicity, phytotoxicity, infectiousness, or other harmful or potentially harmful properties or effects, including, without limitation, crude oil, petroleum and petroleum products, natural gas, asbestos, radon, polychlorinated biphenyls (PCBs) (or distillates or fractions of any of the foregoing) and all of the foregoing that are now or become in the future listed, defined, or regulated in any manner by any Environmental Law based upon, directly or indirectly, their properties or effects; (ii) damages or threatens to damage health, safety, or the environment; and /or (iii) is covered by a standard Pollution Legal Liability insurance policy (including but not limited to storm water pollution). "Environmental Law(s)" means any federal, state, or local environmental, health, or safety - related laws, regulations, standards, court decisions, ordinances, rules, codes, orders, decrees, directives, guidelines, permits, or permit conditions, currently existing and as amended, enacted, issued, or adopted in the future that are or become applicable to Property. As part of this Special Provision, in addition to providing City with the foregoing Indemnification Obligation for Pollution Legal Liability, Owner shall provide City with a copy of (and certification of coverage period) any and all of Owner's insurance coverage in effect as of the Effective Date of this Agreement covering Owner or covering subcontractor(s) to SummerHill Creekside, LLC working on earthmoving or storm water as to public improvement aspects of the project. (b) Insurance: (i) Errors and Omissions Insurance: Developer hereby agrees to require each and every design professional involved in the design or construction of any works of improvement to carry errors and omissions insurance coverage (primary as to City) as to such involvement in the minimum amount of two million dollars ($2,000,000) combined single limit and to name the City and its officers, employees and agents as additional insureds utilizing form #CG 20 10 11 85 attached hereto as Exhibit E, or equivalent language approved by the City Risk Manager., (ii) Commercial General and Automobile Liability Insurance — Developer hereby agrees to carry Commercial General Liability Insurance covering Developer and all contractors and subcontractors who perform all or any portion of the Works of Improvement and Developer shall cause its subcontractors to carry Automobile 12 ATTACHMENT A Liability Insurance Developer shall have its own Automobile Liability Insurance and shall cause the subcontractors' Automobile Liability Insurance policies to meet the same standards and have the same endorsements as the Developer's commercial and auto policies. This insurance shall protect Developer from claims for bodily injury and property damage which may arise because of the nature of the work or from operations under this Agreement. The coverage shall be at least as broad as Insurance Services Office (ISO) Commercial General Liability coverage (occurrence Form CG 0001), ISO Form G0009 11 88 Owners and Contractors Protective Liability Coverage — Coverage for Operations of Designated Contractor) and Insurance Services Office Form Number CA 0001 covering Automobile Liability, code 1 (any auto). Claims -made policies will not be accepted. The Developer's insurance policy(ies) shall be endorsed to name as additional insureds the City and its officers, employees and agents, using ISO Form CG20 11 85. Such policy(ies) shall provide coverage to each of the additional insureds with respect to the Works of improvement. Both bodily injury and property damage insurance must be on an occurrence basis. The policy shall be endorsed to provide primary coverage to the full limit of liability stated in the declarations. If the additional insureds have any other insurance or self - insurance against the loss covered by this policy, that other insurance shall be excess insurance and not contribute with the Developer's policy. (A) Amount of Coverage - The bodily injury and property damage liability of the Commercial General and Automobile Liability Insurance shall provide coverage in the following limits of liability: $1,000,000 per occurrence with an annual general aggregate limit of not less than $2,000,000, and $2,000,000 products and completed operations aggregate, combined single limit. The Automobile Liability insurance policy shall provide minimum limits of $1,000,000 per accident for bodily injury and property damage. (B) Subcontractors - The Commercial General and Automobile Liability Insurance shall not require the Developer to have its subcontractors named as insureds in the Developer's policy, but the insurance shall protect the Developer from contingent liability which may arise from operations of its subcontractors. (C) Included Coverage - The Commercial General and Automobile Liability Insurance shall also include all of the following coverages: • Premises — Operations; • Owner's /Independent Contractors and Contractor's Protective; • Products - Completed Operations; • Personal Injury - (False Arrest, Libel, Wrongful Eviction, etc.); • Blanket Contractual Liability, including the indemnity agreement in this contract; • Separation of Insureds / Cross - Liability Provisions; • Duty to Defend All Insureds; 13 ATTACHMENT A • Deletion of any limitation on Coverage for Bodily Injury or Property Damage Arising Out of Subsidence or Soil or Earth Movement; • A provision that the annual general aggregate and the products and completed operations annual aggregate shall apply separately to the Works of improvement, • XCU - Explosion, Collapse, Underground Damage. (XCU may be deleted with the City's prior written approval when not applicable to operations performed by the Developer or its sub - contractors.) (D) Umbrella Policy or Follow -Form Excess Liability Policy: At the option of the Developer, primary limits may be less than required, with an Umbrella Policy or Follow -Form Excess Liability Policy providing the additional limits needed. This form of insurance will be acceptable provided that the Primary and Umbrella /Excess Policies both provide the insurance coverages herein required, including all additional insured requirements. The umbrella/excess insurance shall be provided on a "following form" basis with coverage at least as broad as provided on the underlying Commercial and General Liability insurance. (E) The certificate of insurance shall guaranty that the policy will not be amended, altered, modified, or canceled without at least thirty (30) days notice mailed by registered mail to the Administrative Services Director, City of Saratoga; 13777 Fruitvale Ave.; Saratoga, California 95070. (F) In accordance with Insurance Code Section 11580.04, coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where any agreement to indemnify the additional insured would be invalid under Civil Code Section 2782(b). (iii)Workers' Compensation Insurance — California Labor Code Sections 3700 and following require every employer to be insured against liability for Workers' Compensation or to undertake self - insurance in accordance with the provisions of that code. The Developer shall comply and shall ensure that all subcontractors comply with such provisions. In addition, the Developer shall have and maintain Employers' Liability insurance with limits of $1,000,000 per accident for bodily injury or disease before commencing the performance of the Works of improvement. Before the Notice to Proceed is issued, the Developer shall submit written evidence that the Developer has obtained for the period of the Agreement full Workers' Compensation Insurance coverage for all persons whom it employs or may employ in carrying out the Work. This insurance shall be in accordance with the requirements of the most current and applicable State Workers' Compensation Insurance Laws. (iv) Proof of Coverage - Before Developer commencing work pursuant to this Agreement, the Developer shall furnish the City with certificate(s) evidencing 14 ATTACHMENT A issuance of all required insurance and copies of the policy declaration or information page(s) and endorsements. The certificate(s) and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates are to be on amended ACORD forms and ISO endorsement forms or equivalent endorsement forms acceptable to the City. The certificate(s), policy declaration or information page(s), and endorsements are to be received and approved by the City before work commences. Endorsements are not required for Workers Compensation Insurance. Such certificates of insurance shall provide that the insurance policy shall not be cancelable, nonrenewable, or otherwise be subject to material modification, except with thirty (30) ' days' prior written notice to the City. Developer shall also provide certificate(s) evidencing renewals of all insurance required herein, at least ten (10) days prior to the expiration date of any such insurance. Any deductibles or self - insured retentions must be declared to and approved by the City. At the option of the City, either the insurer shall reduce or eliminate such deductibles or self - insured retentions as respects the City and other additional insureds or the Developer shall procure a bond guaranteeing payment of losses, related investigations, claim administration, and defense expenses. If the Developer fails to comply strictly with all requirements of this insurance section or if the City receives any notice that any required insurance coverage will be diminished or canceled, the City, at its option, may, notwithstanding any other provisions of this Agreement to the contrary, immediately declare a material breach of this Agreement and suspend all further work pursuant to this Agreement. (c) City Acceptance Not a Waiver or Release; Non - waiver of Developer's Obligations: Developer hereby agrees that notwithstanding any other provision of this Agreement, USE BYANY PERSON FOR ANY PURPOSE OFANYANDALL OF THE WORKS OF IMPROVEMENT, SHALL BE AT THE SOLE AND EXCLUSIVE RISK OF DEVELOPER UNTIL ONE (1) YEAR AFTER FINAL ACCEPTANCE OF THE SAME BY CITY OF THE COMPLETED WORKS OF IMPROVEMENT. It is further agreed that the acceptance of said improvements by City shall not eliminate or reduce any of Developer's obligations or undertakings contained in this Agreement. The issuance of any occupancy permit by City for any structure located within the subject subdivision shall not be construed in any manner to constitute an acceptance and approval of any or all of the Works of improvement in the subject subdivision. 14. LIABILITY FOR NONPERFORMANCE Neither City nor any of its officers, employees or agents shall be liable to Developer or its contractors for any error or omission arising out of or in connection with any work to be performed under this Agreement. 15 ATTACHMENT A 15. LIABILITY FOR PERSONAL INJURIES Except for injury or damage caused solely by City's negligence, City shall not be liable to Developer or to any other person, firm or corporation whatsoever, for any injury or damage that may result to any person or property by or from any cause whatsoever in, on, or about the subject subdivision of the land covered by this Agreement, or any part thereof. 16. OBLIGATIONS OF DEVELOPER Notwithstanding the fact that Developer's plans and specifications, completion of the work, and other acts are subject to approval by the City, it is understood and agreed that any approval by City thereof or any full or partial release of any improvement security shall not relieve Developer from satisfactorily performing said Work of improvement or its obligations under this Agreement. Compliance with the City's standards, specifications and all applicable laws, rules and regulations shall be the sole responsibility of the Developer. Developer hereby warrants to City that its plans and specifications will comply with all of City's standards, specifications and ordinances and that the work done pursuant thereto shall be in conformity with the said standards, specifications and ordinances and that they are adequate to accomplish the work in a good workmanlike manner and in accordance with sound construction practices. This warranty shall survive any review, inspection or approval by the Director of Public Works and any other City officers, employees or agents. 17. WARRANTY AND MAINTENANCE OF WORK Notwithstanding anything contained herein to the contrary, Developer further warrants and guarantees to City the materials used and workmanship performed on the subject subdivision for the maximum statutory period permitted under California law after completion and certification thereof by the Director of Public Works. In addition, Developer shall maintain the work for a period of one (1) year after acceptance of the work by City, or until all deficiencies in the work are corrected to conform to the plans and City's standards and specifications for the work, whichever date is later. 18. NO WAIVERS No waiver of any of the provisions of this Agreement shall constitute a continuing waiver unless expressly provided. No course of dealing between Developer and City, or any delay on the part of City in exercising any rights hereunder shall operate as a waiver of any rights by City, except to the extent expressly waived in writing by City. 19. SUPPLYING "RECORD DRAWING" PLANS Upon completion of the Works of improvement and prior to certification of completion, Developer shall supply City, at no cost to City, one mylar (4 mils) set of "record" drawings. These drawings shall be certified as being "record drawings" and shall reflect the improvements as actually constructed, with all changes incorporated therein. 16 ATTACHMENT A 20. NOTICE AND CERTIFICATION OF COMPLETION Developer shall advise the Director of Public Works in writing. of the completion of the Works of improvement herein specified and request certification of completion. Upon determining the satisfactory completion of the Works of improvement by Developer the City Engineer shall issue a certificate of completion. For the purposes of this Agreement, the date of completion shall be the date that the City Engineer issues' a certificate of completion. After issuance of said certificate, as an alternate to submission of new and separate security for purposes of guarantee and warranty, the retained amount of the Faithful Performance Security may in the sole discretion of the Director of Public Works, be reduced to ten percent (10 %) of the original amount. 21. OWNERSHIP OF WORKS OF IMPROVEMENT Upon acceptance of any Work of improvement by the City Council of the City of Saratoga, such improvement shall become the property of the City without any compensation paid to Developer or any other person. 22. ASSIGNMENT This Agreement shall not be assignable by Developer without the written consent of the City. 23. SURVIVAL OF REPRESENTATIONS All promises, representations and warranties made by Developer pursuant to this Agreement shall survive the completion of the transactions contemplated by this Agreement, the acceptance of the work by City and any investigations or inspections made by or on behalf of City. 24. MODIFICATION AND COMPLETE UNDERSTANDING; BINDING ON SUCCESSORS AND ASSIGNS; RUNS WITH PROPERTY; ORIGINAL DEVELOPER PRIMARILY LIABLE This Agreement sets forth the complete understanding of the parties and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties in connection with the subject matter thereof. No supplement, modification, discharge, waiver or termination of this Agreement or any provisions hereof shall be binding unless executed in writing by the parties to be bound thereby. This Agreement shall be binding upon the successors and assigns of each of the parties. Developer shall inform potential buyers of parcels of land created by the underlying subdivision of the obligations on successors and assigns created by this Agreement. Developer shall provide a copy of this executed Agreement to each potential buyer. Developer agrees to provide City with acknowledgment of his /her disclosure to each potential buyer of their rights and responsibilities under this Agreement pursuant to the form provided in Exhibit F. Developer 17 ATTACHMENT A agrees that the sale of all or part of the lands of the underlying subdivision does not automatically transfer from or in any way relieve the Developer of the duties to perform or the security obligations of this Agreement. Those duties to perform and security obligations attach to Developer as of the Effective Date of this Agreement and remain until all obligations of Developer under this Agreement are fulfilled or transferred by substitution of a replacement agreement and replacement securities acceptable to the City. So long as Developer remains legally responsible for all of said duties to perform and security obligations, this paragraph is not applicable to individual successors of Developer acting as members of the homebuying public who purchase units from Developer, which homebuyers shall have no obligations under this Agreement. 25. HEADINGS NOT FOR CONSTRUCTION The paragraph, subparagraph and section headings, if any, are not to be considered part of this Agreement and are included solely for the convenience and are not intended to be full or accurate descriptions of the contents thereof. 26. TIMING OF AGREEMENT The Parties hereby agree that time is of the essence as to this Agreement. 27. AUTHORITY TO EXECUTE Each of the signatories hereto warrants and represents that he or she has the authority to sign this agreement and to bind any party on whose behalf said signature is made and/or to bind any property with respect to which said signature is made. 18 ATTACHMENT A IN WITNESS WHEREOF, this agreement has been duly executed by the parties hereto on , 2011. Date Owner and Subdivider: SummerHill Creekside LLC, a California limited liability company By: SummerHill Homes LLC, its manager By: _ Name: Title: By: _ Name: Title: As to only the Special Provision re Indemnification Obligation for Pollution Legal Liability under Section 13(a) and the fourth WHEREAS clause in the RECITALS: SummerHill Homes LLC, a California limited liability company By: Name: Title: By: Name`. Title: Date City of Saratoga IIm (name) (title) 19 ATTACHMENT A INSTRUCTIONS This Agreement shall be recorded. Owner(s) and Subdivider(s) signature(s) must each be acknowledged by a notary. Inform the notary that the acknowledgement is for an instrument to be recorded (California Civil Code § 1169, et seq.) 20 ATTACHMENT A State of California County of On before me, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature State of California County of On (Seal) before me, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) 21 ATTACHMENT A State of California County of On before me, , personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) 22 ATTACHMENT A EXHIBIT A [INSERT PROPERTY DESCRIPTION] 23 ATTACHMENT A EXHIBIT B FAITHFUL PERFORMANCE BOND WHEREAS, the City of Saratoga, State of California ( "City "), and (Name of Subdivider, hereinafter designated as "Principal ") have entered into an Agreement whereby Principal agrees to install and complete certain designated improvements for the benefit of the public, which Agreement, dated , and identified as Project , is hereby incorporated by this reference and made a part hereof as though fully set forth herein; and WHEREAS, Principal is required under the terms of the Agreement to furnish a bond for the faithful performance of the Agreement (including but not limited to the performance of the work and a guarantee against any defective work or labor done or defective materials furnished for one year and thereafter until all deficiencies have been corrected to the satisfaction of and acceptance by City); NOW, THEREFORE, we, Principal and (Name of Surety), as Surety, are held and firmly bound unto the City, in the penal sum of lawful money of the United States, for the payment of which we bind ourselves, our heirs, successors, executors, and administrators, jointly and severally, firmly by these presents. The condition of this obligation is such that the obligation shall become null and void if the above - bounded Principal, his or its heirs, executors, administrators, successors, or assigns, shall in all things stand to, abide by, well and truly keep, and perform the covenants, conditions, and provisions in the Agreement and any alteration thereof made as therein provided, on his /her or their part, to be kept and performed at the time and in the manner therein specified, and in all respects according to his /her or their true intent and meaning, and shall indemnify and save harmless City, its officers, employees, and agents as therein stipulated; otherwise, this obligation shall be and remain in full force and effect. As a part of the obligation secured hereby and in addition to the face amount specified, costs and reasonable expenses and fees shall be included, including reasonable attorneys' fees, incurred by the City in successfully enforcing the obligation, all to be taxed as costs and included in any judgment rendered. The Surety hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the Agreement, the work to be performed thereunder, or the specifications accompanying the Agreement shall in any way affect its obligations on this bond. The Surety hereby waives notice of any such change, extension of time, alteration, or addition to the terms of the Agreement, the work, or the specifications. IN WITNESS WHEREOF, this instrument has been duly executed by Principal and Surety on 24 ATTACHMENT A PRINCIPAL: Date: Subdivider: SURETY: Date: I: LOW Name: Its: a California Corporation Name: Its: 25 ATTACHMENT A EXHIBIT C LABOR AND MATERIAL BOND WHEREAS, the City of Saratoga, State of California, and (Name of Subdivider, hereinafter designated as "Principal ") have entered into an Agreement whereby Principal agrees to install and complete certain designated improvements for the benefit of the public, which Agreement, dated , and identified as Project , is hereby incorporated by this reference and made a part hereof as though fully set forth herein; and WHEREAS, under the terms of the Agreement, Principal is required before entering upon the performance of the work to file a good and sufficient payment bond with the City to secure the claims to which reference is made in Title 15 (commencing with section 3082) of Part 4 of Division 3 of the Civil Code of the State of California: NOW, THEREFORE, we, the Principal and the undersigned as corporate Surety (hereinafter referred to as "Surety "), are held and firmly bound unto the City and all contractors, subcontractors, laborers, materialmen, and other persons employed in the performance of the Agreement and referred to in Title 15 (commencing with section 3082) of Part 4 of Division 3 of the Civil Code in the sum of , for materials furnished or labor thereon of any kind, or for amounts due under the Unemployment Insurance Act with respect to this work or labor, that Surety will pay the same in an amount not exceeding this amount set forth. If suit is brought on this bond, Surety will pay, in addition to the face amount thereof, costs and reasonable expenses and fees, including reasonable attorney fees, incurred by the City in successfully enforcing the obligation, to be awarded and fixed by the Court, to be taxed as costs, and to be included in the judgment rendered. It is hereby expressly stipulated and agreed that this bond shall inure to the benefit of any and all persons, companies, and corporations entitled to file claims under Title 15 (commencing with section 3082) of Part 4 of Division 3 of the Civil Code, so as to give a right of action to them or their assigns in any suit brought upon this bond. If the condition of this bond is fully performed, then this obligation shall become null and void; otherwise, it shall be and remain in full force and effect. Surety hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the agreement of the specifications accompanying the agreement shall in any manner affect its obligations on this bond. The Surety hereby waives notice of any such change, extension, alteration, or addition. IN WITNESS WHEREOF, this instrument has been duly executed by Principal and Surety on 26 ATTACHMENT A PRINCIPAL: Date: SURETY: Date: Subdivider By: Name: Its: a California Corporation Name: Its: 27 ATTACHMENT A EXHIBIT D CONDEMNATION CLAUSE Within ten (10) days of the Effective Date of this Agreement, Developer agrees to use best efforts to commence negotiations for acquisition of the required easements. Developer shall base his /her offers to purchase the roadway easement or right -of -way on appraisals prepared in conformity with eminent domain law. Within sixty (60) days of execution of this Agreement, Developer shall provide the City with written documentation of acquisition efforts, including parties contacted, times of such contact, amounts offered, basis of offers, and property owners' responses. If developer has not acquire the required easements within sixty (60) days of the Effective Date of this Agreement, Developer agrees to deposit with the City of Saratoga within (70) days of the Effective Date of this Agreement a $ cash deposit to apply toward the costs required to acquire the roadway easement or right -of -way, including attorney time, appraisal and engineering services. Upon receipt of the security, City Attorney shall retain an appraiser and initiate negotiations with the property owners and, if necessary, shall initiate and diligently pursue eminent domain proceedings. Both parties acknowledge that the City Council of the City after authorizing staff to initiate eminent domain proceedings may, in its sole discretion, based on substantial legal justification for good cause, determine not to proceed or to abandon the eminent domain proceedings. The City shall consider initiation of a condemnation action pursuant to Civil Code Section 1001, Code of Civil Procedure Section 1245.325, Government Code Section 66462.5, and Chapter 14 of the Saratoga City Code. If the costs of acquisition are less than the required cash deposit, then the balance of the cash deposit thereon shall be refunded to the Developer. If the City requires additional funds to pursue eminent domain proceedings, the Developer shall submit such additional funds, within thirty (30) days of a request by City. 28 ATTACHMENT A EXHIBIT E FORM # CG 20 10 1185 POLICY NUMBER: COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY: ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS (FORM B) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART: SCHEDULE: Name of Person or Organization: City of Saratoga and its officers, employees and /or agents (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of "your work" for that insured by or for you. SUCH INSURANCE AS IS AFFORDED BY THIS POLICY FOR THE BENEFIT OF OWNER AND GENERAL CONTRACTOR SHALL BE PRIMARY INSURANCE AS RESPECTS TO ANY CLAIMS, LOSSES, OR LIABILITY ARISING DIRECTLY OR INDIRECTLY FROM THE CONTRACTOR'S OPERATIONS AND ANY OTHER INSURANCE MAINTAINED BY OWNER AND GENERAL CONTRACTOR SHALL BE EXCESS AND NOT CONTRIBUTORY WITH THE INSURANCE PROVIDED HEREUNDER. 29 ATTACHMENT A EXHIBIT F ACKNOWLEDGMENT OF DISCLOSURE UNDER SECTION 24 TO THE ATTACHED SUBDIVISION IMPROVEMENT AGREEMENT I, (name of purchaser of parcel of property in the subdivision known as , referred to as APN , and described more fully in Exhibit "I" to this Exhibit E), do hereby acknowledge that (Developer), has fully informed me of my responsibilities under the attached Subdivision Improvement Agreement. I understand that such Agreement shall be binding upon me and on my successors and assigns. I further understand that by purchasing a parcel of land created by the underlying subdivision reference above, I have certain obligations created by this Agreement, which are binding upon me and on my successors and assigns. I have received a copy of the Agreement executed between the City of Saratoga and Developer and understand the responsibilities imposed on me by the Agreement. IN WITNESS WHEREOF, this instrument has been duly executed by Purchaser as set forth below. PURCHASER: Date: By: Name: Its: 30 Document comparison done by Workshare DeltaView on Monday, March 07, 2011 1:47:21 PM Sta #isfics Document 1 Powerpocs:/ /LEGAL /10814/3 Document 2 Powerpocs:/ /LEGAL /10814/4 Rendering set standard Sta #isfics �_ Count Insertions 29 Deletions 9 Moved from 0 Moved to 0 Style change 0 Format chan ed 0 Total changes 38 Memo To: City Counci From: Ann S Date: March 16, X011 Re: Agenda Item 13 — Report to Council on Criteria and Process for Adopting Heritage Trees Attached is correspondence for the above item that the City Clerk's office received after the posting of the agenda/packet. VUV- .5ul Uvcl w Ann Sullivan, CMC City Clerk City Clerk [Ann Sullivan] From: Schist [schist @earthlink.net] Sent: Wednesday, March 16, 2011 4:23 PM To: Howard Miller; Chuck Page; Jill Hunter; Emily Lo; Manny Cappello Cc: City Clerk [Ann Sullivan]; Dave Anderson Subject: Heritage trees in Saratoga Honorable City Council Members, I wanted to write and encourage you to support a program honoring the heritage trees in our City. While I have always enjoyed trees, Council member Hunter has provided me with a new appreciation of their importance. As I drive around the Bay Area, I see many communities without the type and number of trees we have and I feel fortunate that I live in an area with large trees. So many times we take for granted the wonderful place we live in. I hope you will vote to support City Council action related to preserving, honoring and adding trees in the City. Thank you for all of your efforts on behalf of the citizens and residents of Saratoga. All the best, Trish Cypher 408 Area Code — Additional Information History: • The 408 area code was created in 1959; it was split from the 415 area code • The 831 area code was split from the 408 area code in 1998 Pre - fixes: • These are the first three numbers of a 7 -digit number; for example the 868 and 867 prefixes are used in Saratoga • There are 1,000 total prefixes available • Of these about 200 are not used, as it is not allowed to use a "0" or "1" to begin a prefix • This reduces the available number to 800, of which 16 are for "special uses ", thus reducing the total available prefixes to 784 • There are only about 43 prefixes left unused in the 408 Area Code Overlay: • With this approach, all calls using either the 408 or 669 area code would be considered "local" • With this approach the estimated life span will be about 36 years, until something additional will need to be done • The City of San Jose and the telecommunications industry favor this option Split: • With this approach, all calls using either the 408 or 669 area code would be considered "local" • With this approach the estimated life span for Area "A" will be about 39 years and for Area "B" about 32 years • In determining the sub - regions for a split, a main factor is the number of prefixes already in use in each area. The goal is to find a split line in which the projected life span for each sub - region will balance out. • No decision has yet been made about which sub - region would receive the 408 area code and which would receive the 669 area code.