Attachment 3EXECUTION COPY
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SUBDIVISION IMPROVEMENT AGREEMENT
BETWEEN
THE TOWN OF LOS GATOS
AND
SUMMERHILL N40 LLC
LOS GATOS, CALIFORNIA
This agreement, made and entered into effective upon the last date this document is signed by the
parties hereto, by and between the TOWN OF LOS GATOS, a municipal corporation of the State of
California, hereinafter “Town,” and SUMMERHILL N40 LLC, after this called “Subdivider,” whose principal
place of business is 3000 Executive Parkway, Suite 450, San Ramon, CA 94583.
WITNESSETH
WHEREAS, a Final Map (hereinafter “Map”) of Tract 10441 (the “Subdivision”) owned by Subdivider
and commonly known as “North 40 Phase 1,” has been filed with the Town, which Map is incorporated herein
by reference;
WHEREAS, the Conditions of Approval of the Subdivision Application (A&S Cond. 163) require the
Subdivider to construct and complete certain improvements according to the following plans and
specifications (“Improvement Plans” or “Plans”):
a.Los Gatos North 40 – Phase I Tract 10441 Improvement Plans dated August 24, 2018 by
Mackay & Somps
b.North 40 – Onsite Private Street Lighting Plans dated August 23, 2018 by Giacalone
c.North 40 Intract/Phase One Landscape Construction Plans dated August 24, 2018 by Van
Dorn Abed
d.Los Gatos North 40 Tract 10441 In tract Rough Grading Plans dated August 14, 2018 by
Mackay & Somps
e.Los Gatos North 40 Phase 1 Offsite Los Gatos Blvd Phase A Improvement Plans dated July
27, 2018 by Mackay & Somps
f.Los Gatos Blvd & Walker Street Traffic Signal Plan dated August 2018 by Fehr & Peers
g.Walker Street & Los Gatos Blvd Phase A Signing and Striping Plan dated August 2018 by
Fehr & Peers
h.Los Gatos North 40 Phase 1 Offsite Lark Avenue and Los Gatos Boulevard Improvement
Plans dated June 4, 2018 by Mackay & Somps
i.North 40 Phase 1 Public Street Lighting Plans dated June 2018 by Giacalone
j.North 40 Offsite Lark Avenue and Los Gatos Blvd Landscaping plans dated June 1, 2018 by
Van Dorn Abed
k.Lark Ave & Los Gatos Blvd Traffic Signal plans dated June 2018 by Fehr & Peers
l.Lark Ave & Los Gatos Blvd Signing and Striping Plans dated June 2018 by Fehr & Peers
ATTACHMENT 3
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m.Los Gatos North 40 Offsite Lark Avenue Caltrans Right of Way Improvement Plans dated
March 12, 2018 including plans by Mackay & Somps, Finn Design Group, Van Dorn Abed,
Fehr & Peers, and Giacalone
n.Los Gatos North 40 Phase 1 Lark Avenue Bike Lane Improvement Plans dated March 15,
2018 by Mackay & Somps
o.North 40 Offsite Lark Avenue Landscape Construction Drawings dated June 6, 2018 by Van
Dorn Abed
p.Lark Ave & Oka Road Traffic Signal Plans dated June 2018 by Fehr & Peers
q.Lark Avenue Signing and Striping Plans dated June 2018 by Fehr & Peers
r.Los Gatos North 40 Phase 1 Off Site Storm and Sanitary Sewer Improvement Plans dated
September 13, 2017
The foregoing improvements are hereinafter referred to as “Required Improvements”;
WHEREAS, the Subdivider has prepared, and the Town Engineer has substantially approved,
Improvement Plans for the completion of the Required Improvements in connection with the Subdivision. The
Plans are on file in the Office of the Town Engineer and are incorporated into this agreement by this
reference, along with any changes or modifications as may be required by the Town Engineer or designee
due to errors, omissions, or changes in conditions;
WHEREAS, Subdivider recognizes that, by approval of the Map for Subdivision, Town has conferred
substantial rights upon Subdivider, including the right to sell, lease, or finance lots and/or condominiums
within the Subdivision. As a result, Town will be damaged to the extent of the cost of installation of these
Required Improvements by Subdivider’s failure to perform its obligations to commence construction of the
Required Improvements by the time established in this agreement. The Town shall be entitled to all remedies
available to it pursuant to this agreement and law in the event of default by Subdivider; and
WHEREAS, Subdivider has asked Town to review and approve the Map and accept the dedications
therein offered, subject to and on condition that the Subdivider, prior to issuance of a building permit for the
Required Improvements, enter into this agreement with the Town, and provide the Town with such security for
performance and insurance and all other things as required by this agreement;
NOW, THEREFORE, to insure satisfactory performance by Subdivider of these obligations, and in
consideration of the approval of the Map, the parties now agree as follows:
1.PERFORMANCE OF WORK
Subdivider agrees to furnish, construct and install a t Subdivider’s own expense the Required
Improvements. The Plans and specification of the Required Improvements may be modified by the
Subdivider as the Subdivision progresses, subject to prior written approval of the Town Engineer.
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2.WORK; SATISFACTION OF TOWN ENGINEER
All the work on the Required Improvements is to be done at the places, of the materials, and in the
manner and at the grades, shown upon approved Plans and specifications and the Town’s
Ordinances, Improvement Standards and Specifications, to the satisfaction of the Town Engineer.
Work shall be completed within two (2) years from the date of this agreement, subject to extension
due to force majeure event under Section 10(a).
3.INSPECTION BY TOWN
Subdivider shall at all times provide safe access for inspection by the Town to all parts of the
Required Improvements and to all places where the Required Improvements are in preparation.
4.SURVEY MONUMENTS
Subdivider shall install all Subdivision monuments required by law prior to recordation of the Notice of
Acceptance.
5.DEDICATION OF EASEMENTS OR RIGHT-OF-WAY
The Town acknowledges that Subdivider has offered to the Town to dedicate fee title to all streets
subject to public access easement (PAE) shown on the Map.
6.IMPROVEMENT SECURITY
Concurrently with the execution of this agreement, the Subdivider shall furnish the Town:
a.Faithful Performance Security: Pursuant to California Government Code section
66499.3(a) Subdivider shall, before the release of the Map by the Town for filing for record
and as a condition precedent to the recordation of it, furnish to the Town and file with the
Town Clerk cash, an instrument of credit, or a bond as provided by the Subdivision Map Act,
in a form approved by the Town Attorney, securing performance by Subdivider of all work
shown on the Plans and completion within the agreed time. The security shall be in the
amount of one hundred percent (100%) of the total estimated cost of the Required
Improvements, as determined by the Director. The amount of cash, instrument of credit or
bond shall be $20,585.00 based on individual bonds as follows:
(1) North 40 Phase 1 Tract 10441 In tract Private Improvements ($6,655,000) – based
on improvement plans (a), (b) and (c) noted on page 1.
(2) North 40 In tract Tract 10441 Rough Grading ($6,430,000) – based on improvement
plans (d) noted on page 1.
(3) North 40 Phase 1 Offsite Los Gatos Blvd Phase A Improvements ($710,000) –
based on improvement plans (e), (f) and (g) noted on page 1.
(4) North 40 Phase 1 Offsite Lark and Los Gatos Blvd Improvements ($1,938,000) –
based on improvement plans (h), (i), (j), (k) and (l) noted on page 1.
(5) North 40 Phase 1 Offsite Lark and Los Gatos Blvd – Pavement Replacement
($3,262,000)
(6) North 40 Offsite Lark Avenue Improvements within Caltrans Right-of-Way
($799,000) – based on improvement plans (m) noted on page 1.
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(7) North 40 Offsite Lark Avenue Bike Lane Improvements ($390,000) – based on
improvement plans (n), (o), (p) and (q) noted on page 1.
(8) North 40 Offsite Storm and Sanitary Sewer Improvement Plans ($94,000) – based
on improvement plans (r) noted on page 1.
(9) North 40 Offsite Storm and Sanitary Sewer Improvement Plans ($307,000) - based
on improvement plans (r) noted on page 1.
b.Payment Security: Subdivider shall furnish to the Town and file with the Town Clerk cash,
an instrument of credit, or a bond as provided by the Subdivision Map Act, in a form
approved by the Town Attorney, securing the obligations for payment to the contractor,
subcontractors and to persons renting equipment or furnishing labor or materials for the
completion of the Required Improvements. The security shall be in the amount of one
hundred percent (100%) of the total estimated cost of the Required Improvements, as
determined by the Director. The amount of cash, instrument of credit or bond shall be
$20,585.00 based on the individual bonds described in Section 6(a).
c.Guarantee and Warranty Security: It is further agreed that a “guarantee and warranty
security” in the amount of ten (10%) percent of the total estimated cost of the Required
Improvements for a period of two (2) years following their completion and acceptance by the
Town against any defective work or labor done, or defective materials furnished, by the
Subdivider. This limitation on the security does not shorten any time during which the Town
may act to enforce the Subdivider’s obligations under the terms of this agreement, nor
shorten any time during which Town may bring an action in an appropriate court regarding
the subject or performance of this agreement.
d.Monument Security: It is further agreed that a “monument security” in the amount of one
hundred percent (100%) of the total estimated cost of the installation of survey monuments in
the Subdivision within the period of time specified in the Surveyor’s Statement on the
approved Final Map. The Monument Bond is included in various other line items within the
distributed bonds.
e.Any bonds submitted as security pursuant to this section shall be executed by a surety
company authorized to transact a surety business in the State of California.
f.No change, alteration, or addition to the terms of this agreement or the Plans and
specifications incorporated herein shall in any manner affect the obligation of the sureties,
except as otherwise provided by the Subdivision Map Act.
g.The securities shall be irrevocable, shall not be limited as to time except as to the two (2)
year guarantee and warranty period) and shall provide that they may be released, in whole
or part, only upon the written approval of the Director and as provided in Section 7-Release
of Security. All securities provided pursuant to this agreement shall expressly obligate the
surety for any extension authorized by the Town for Subdivider’s completion of the Required
Improvements, whether or not the surety is given notice of such an extension by the Town.
7.RELEASE OF SECURITY
a.Guarantee and Warranty Security: Any unused portion of the guarantee and warranty
security shall be released two (2) years after acceptance of the Required Improvements
by the Town Council. The amount to be released shall first be reduced by the
amount deemed necessary by the Town to correct any defects in the Required
Improvements that are known or believed by the Town to exist at the end of the guarantee
and warranty period.
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b.Payment Security: Security securing the payment to the contractor, his or her
subcontractors, and to persons furnishing labor, materials or equipment shall, after
acceptance of the work, be reduced to an amount equal to the total timely claimed by all
claimants for whom claims of lien have been recorded and notice thereof given in writing to
the legislative body (with the balance of the Payment Security being released) and, if no
such claims have been timely recorded, the security shall be release in full.
c.Faithful Performance Security: The faithful performance security shall be released upon
acceptance of the Required Improvements by the Town Council.
d.Monument Security: The monument security may be released upon acceptance of the
required monument installation by the Director.
8.HOLD HARMLESS
Subdivider does expressly agree to protect, defend, indemnify and hold harmless (hereinafter, “hold
harmless”) the Town, its Town Council Members, Boards, Commissions, employees and agents
(hereinafter, the “Town”), from any and all loss or damage, and from any and all liability, includi ng
cost of defense, for any and all loss or damage, and from any and all suits, actions or claims filed or
brought by any or all persons or person (hereinafter, “Claim”) because of or resulting from the acts by
Subdivider of any and all things required of Subdivider by this agreement, or because of or arising or
resulting from the failure or omission by Subdivider to do any and all things necessary to and required
by this agreement or by law, or arising or resulting from the negligent acts by Subdivider, Subdivider’s
agents, employees or subcontractors of any and all things required to be done by this agreement, or
arising or resulting from any dangerous or defective condition arising or resulting from any of the
above said acts or omissions of Subdivider, Subdivider’s agents or employees. Subdivider shall not
be required to hold harmless (as described above) the Town for Claims caused or arising out of the
sole negligence or willful misconduct of the Town.
9.INSURANCE
Subdivider shall furnish to the Town and file with the Town Clerk evidence of, and at all times during
the performance of its obligations under this agreement maintain, the insurance described in Exhibit
A.
10.TIME EXTENSIONS
a.If performance of this agreement actually should be delayed by inclement weather, riots,
strikes, lockouts, fires, earthquakes, floods and conditions resulting therefrom, subcontractor
delays, labor shortages, material shortages or delays, Town delays, or for other reasons
beyond the control of the Subdivider, the time for the construction of same may be extended
by the Town Engineer for such period of time as is reasonable.
b.Requests for extension of the commencement and/or completion date shall be in writing and
delivered to the Town in the manner hereinafter specified for service of notices. An
extension of time, if any, shall be granted only in writing.
c.In the event the Town extends the time of commencement and/or completion of the Required
Improvements, such extension shall be granted in writing by the Town to the Subdivider
pursuant to this agreement, and/or without relieving or releasing those providing an
improvement security pursuant to this agreement. The surety or sureties, if any, in executing
the securities shall be deemed to have expressly agreed to any such extension of time.
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d. In granting any extension of time, the Town may require new or amended improvement
security in amounts increased to reflect increases in the costs of constructing the incomplete
Required Improvements, taking into account all Required Improvements that have been
completed.
11. MAINTENANCE OF PUBLIC INFRASTRUCTURE
The Subdivider shall maintain all Required Improvements (streets, sidewalks, right -of-way, street
light, storm drainage facility, sanitary sewer, etc.) in a safe and usable condition at all times during
construction. Should any Required Improvements become unsafe, unusable or inoperable because
of the Subdivider’s activities, the Subdivider shall immediately cease all work on the Subdivision until
the public infrastructure is made safe and usable, for which the Subdivider shall be solely
responsible. Additionally, notwithstanding acceptance by Town, Subdivider shall maintain and
perform or cause to be performed repairs, additions, or corrective work necessitated by Subdivider’s
omission or deficient performance for one (1) year after acceptance. If the Subdivider fails to act
promptly or in accordance with this agreement, or if the exigencies of the situation require repairs or
replacements to be made before the Subdivider can be notified, then the Town may, at its option,
make the necessary repairs or replacements or perform the necessary work, and Subdivider shall
pay the Town the actual cost of such repairs plus fifteen percent (15%) within thirty (30) days of the
date of billing for such work by Town.
12. DEFAULT BY SUBDIVIDER
a. Default of Subdivider shall include, but not be limited to:
(1) Subdivider’s failure to timely commence construction of Required Improvements
under this agreement;
(2) Subdivider’s failure to complete construction of the Required Improvements within
the time period provided by this agreement or any extensions thereof;
(3) Subdivider’s failure to timely cure any defect in the Required Improvements during
the two (2) year guaranty and warranty period where such failure continues beyon d thirty
(30) days after written notice thereof from the Town, or if such failure is not susceptible to
cure within such thirty (30) day period, Subdivider has not commenced to cure within such
thirty (30) day period and does not thereafter continue to diligently proceed to cure;
(4) Subdivider’s failure to perform substantial construction work for a period of 30
consecutive calendar days after commencement of the work, for reasons other than force
majeure events;
(5) Subdivider’s insolvency, appointment of a receiver, or the filing of any petition in
bankruptcy, either voluntary or involuntary, 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; or
(7) Subdivider’s failure to perform any other obligation under this agreement within thirty
(30) days after written notice thereof from the Town, or if such failure is not susceptible to
cure within such 30-day period, Subdivider has not commenced to cure within such 30-day
period and does not thereafter continue to diligently proceed to cure.
b. The Town reserves all remedies available to it at law or in equity for breach of Subdivider’s
obligations under this agreement. The Town shall have the right, subject to this Section, to
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draw upon or use the appropriate security to mitigate the Town’s damages in the event of
default by Subdivider. The Town’s right to draw upon or use the security is in addition to any
other remedy available to Town. The parties acknowledge that the estimated costs and
security amounts may not reflect the actual cost of construction of the Improvements and,
therefore, Town’s damages for Subdivider’s default shall be measured by the cost of
completing the Required Improvements. The Town may use the sums provided by the
securities for the completion of the Required Improvements in accordance with the Plans and
specifications contained herein. In the event Subdivider fails to cure any default under this
agreement within thirty (30) days after the Town mails written notice of such default to the
Subdivider and the Subdivider’s surety, Subdivider authorizes Town to perform the obligation
for which Subdivider is in default and agrees to pay the entire cost of such performance by
the Town. The Town may take over the work and complete the Required Improvements, by
contract or by any other method the Town deems appropriate, at the expense of Subdivider.
In such event, the Town, without liability for so doing, may complete the Required
Improvements using any of Subdivider’s materials, appliances, Plans and other property that
are at the work site and that are necessary to complete the Required Improvements.
13. NOTICES
Notices regarding this agreement shall be given as follows and shall be considered effective upon
either personal delivery or five (5) days following deposit in the U.S. Mail:
To SUBDIVIDER: SummerHill N40 LLC
3000 Executive Parkway, Suite 450
San Ramon, CA 94583
To TOWN: Parks and Public Works Department
Town of Los Gatos
41 Miles Avenue
Los Gatos, California 95030
Any party may change such address by notice in writing to the other party and thereafter notices shall
be addressed and transmitted to the new address.
14. WAIVER
Waiver of a breach of default under this agreement shall not form a continuing waiver or a waiver of a
subsequent breach of the same or any other provision of the agreement.
15. SEVERABILITY
If any term of this agreement is held invalid by a court of competent jurisdiction, the remainder of this
agreement shall remain in effect.
16. ENTIRE AGREEMENT AND AMENDMENT
This agreement constitutes the complete and exclusive statement of the agreement between the
Town and Subdivider. No verbal agreement or conversation with any officer, agent, or employee of
the Town, either before, during or after the execution of this agreement, shall affect or modify any of
the terms or obligations contained in the agreement. There are no intended third party beneficiaries
to this Agreement.
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17. PAYMENT OF OUTSTANDING FEES
Prior to acceptance of Required Improvements for permanent maintenance by the Town, Subdivider
shall pay all outstanding fees that are due in accordance with this agreement and the Town Code of
the Town of Los Gatos.
18. ACTIONS TO ENFORCE
If any action at law or equity, including an action for declaratory relief, is brought to enforce or
interpret the provisions of this agreement, the prevailing party shall be entitled to reasonable
attorneys’ fees, expert witness fees and costs, in addition to any other rel ief to which they may be
entitled.
19. REIMBURSEMENT OF ATTORNEYS FEES
In the event of any third party claim or legal challenge to any action taken by the Town with regard to
any procedure or aspect of this agreement, including approval or environmental review process, the
Town may choose to defend the claim or action with the prior written approval of the Subdivider, the
Subdivider, if it has consented to the defense of the claim or action, agrees to reimburse the Town for
attorneys’ fees, expert witness fees, and any other costs the Town may incur in connection with its
retention of legal counsel, and for any award of court costs and fees against the Town.
20. AGREEMENT BINDS SUCCESSORS
This agreement pertains to and runs with the land benefited by the privileges it grants and binds the
successors in interest of the parties to this agreement.
21. MORTGAGE PROTECTION
No breach of this agreement shall defeat or render invalid the lien of any deed of trust or mortgage
recorded against all or any portion of the Subdivision. No lender taking title to all or any portion of the
Subdivision through foreclosure or deed in-lieu of foreclosure shall be liable for any defaults or
monetary obligations of Subdivider arising prior to acquisition of possession of such property by such
lender. The foreclosing lender shall have the right to find a substitute developer to assume the
obligation of Subdivider, which substitute shall be considered for approval by Town pursuant to this
agreement, which approval shall not be unreasonably withheld, conditioned or delayed. Town agrees
to provide any lender who has recorded a deed of trust or mortgage against all or any portion of
North 40 Phase 1 of which Town has been given notice (each, a “Lender”) with written notice of any
default relating to the Subdivider and/or North 40 Phase 1 given by Town to Subdivider. Town
agrees that, notwithstanding anything to the contrary contained in this Agreement, Lender shall have
an additional sixty (60) days from the date Lender receives notice of a defau lt to cure any such
default, provided that Lender shall not have any obligation to cure any such default.
If a Lender or an affiliate of such Lender succeeds to the interest of Subdivider through foreclosure or
deed in-lieu of foreclosure, then the time periods for performance of Subdivider’s obligations set forth
in this agreement (if any) shall be extended for a period of time reasonable under the circumstances
to permit such Lender or such affiliate to perform Subdivider’s obligations under this agreemen t.
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TOWN OF LOS GATOS
DATE: ___________________ ______________________________________
TOWN MANAGER
ATTEST:
DATE: ___________________
______________________________________
CLERK ADMINISTRATOR
APPROVED AS TO FORM:
DATE: ___________________
______________________________________
TOWN ATTORNEY
RECOMMENDED BY:
DATE: ___________________
______________________________________
DIRECTOR OF PARKS AND PUBLIC WORKS
SUBDIVIDER
SUMMERHILL N40 LLC,
a California limited liability company
By: SummerHill Homes LLC,
a California limited liability company
Its Manager
By:
Its:
DATE: ___________________
By:
Its:
DATE: ___________________
EXECUTION COPY
SMHH\54443\1441213.12 1
FAITHFUL PERFORMANCE BOND BOND NUMBER:
PREMIUM:
WHEREAS, the Town of Los Gatos, State of California (hereinafter called “Town”), and
SUMMERHILL N40 LLC (herein designated as “Principal”) have entered an agreement by which Principal
agrees to install and complete certain designated public improvements, which agreement, dated [MONTH]
[DAY], 20___, and identified as the “Subdivision Improvement Agreement” is hereby referred to and made a
part hereof; and
WHEREAS, said Principal is required under the terms of the Subdivision Improvement Agreement to
furnish a bond for the faithful performance of said agreement.
NOW, THEREFORE, we, the Principal and _______________, as Surety, are held and firmly bound
unto the Town, in the penal sum of Amount ($Amount) lawful money of the United States, for the payment of
which sum well and truly to be made, we bind ourselves, our heirs, successors, executors and administrators,
jointly and severally, formally by these presents.
The condition of this obligation is such that if the above bounded Principal, its heirs, executors,
administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and
perform the covenants, conditions and provisions in the Subdivision Improvement Agreement and any
alteration thereof made as therein provided, on his or their part, to be kept and performed at the time and in
the manner therein specified, and in all respects according to their true intent and meaning, and shall
indemnify and save harmless Town, its officers, agents and employees, as therein stipulated, and this
obligation shall become null and void; otherwise it shall be and remain in full force and effect.
Principal and Surety further agree that, upon Town’s fin al approval of the work, ten percent (10%) of
this bond shall remain in effect to guarantee the repair and/or replacement of defective materials and/or
construction, one (1) year after Town’s final acceptance of the work, unless Principal posts a separate
warranty bond instead.
As a part of the obligation secured hereby and in addition to the face amount specified therefor, there
shall be included costs and reasonable expenses and fees, including reasonable attorney’s fees, incurred by
Town in successfully enforcing such obligation, all to be taxed as costs and included in any judgement
rendered.
The Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to
the terms of the agreement or to the work to be performed thereunder or the specifications accompanying the
same shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change,
extension of time, alteration or addition to the terms of the Subdivision Improvement Agreement or to the work
or to the specifications.
In witness whereof, this instrument has been duly executed by the Principal and Surety above
named, on [MONTH] [DAY], 20___.
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PRINCIPAL:
SUMMERHILL N40 LLC,
a California limited liability company
By: SummerHill Homes LLC,
a California limited liability company
Its Manager
By:
Its:
By:
Its:
SURETY:
___________________________________
[PRINCIPAL]
By:
Its:
___________________________________
[Address]
___________________________________
[City, State, ZIP]
EXECUTION COPY
SMHH\54443\1441213.12 1
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of _____________________ )
On ____________________, before me, ____________________________, a Notary Public, 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 m y hand and official seal.
Signature
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of _____________________ )
On ____________________, before me, ____________________________, a Notary Public, personally
appeared _______________________________, who proved to me on the basis of satisfa ctory 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
EXECUTION COPY
SMHH\54443\1441213.12 1
LABOR AND MATERIALS BOND BOND NUMBER:
PREMIUM:
WHEREAS, the Town of Los Gatos, State of California (hereinafter called “Town”), and SummerHill
N40 LLC (hereinafter designated as “Principal”) have entered an agreement whereby Principal agrees to
install and complete certain designated public improvements, which agreement, dated [MONTH] [DAY],
20___, and identified as the “Subdivision Improvement Agreement” is hereby referred to and made a part
hereof; and
WHEREAS, under the terms of the Subdivision Improvement Agreement, Principal is required, before
entering upon the performance of the work, to file a good and sufficient payment bond with the Town 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, said Principal and the undersigned as Corporate Surety are held firmly bound
unto the Town and all contractors, subcontractors, laborers, material suppliers and other persons employed in
the performance of the Subdivision Improvement Agreement and referred to in the aforesaid Civil Code in the
sum of Amount ($Amount) for materials furnished or labor thereon of any kind, or for amounts due under the
Unemployment Insurance Act with respect to such work or labor, that said surety will pay the same in an
amount not exceeding the amount herein above set forth, and also in case suit is brought upon this bond, will
pay, in addition to the face amount thereof, costs and r easonable expenses and fees, including reasonable
attorney’s fees, incurred by the Town in successfully enforcing such obligation, to be awarded and fixed by
the court, and to be taxed as costs and to be included in the judgment therein 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.
Should the condition of this bond be fully performed, then this obligation shall become null and void,
otherwise it shall be and remain in full force and effect.
The Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to
the terms of the Subdivision Improvement Agreement or the specifications accompanying the same shall in
any manner affect its obligations on this bond, and it does hereby waive notice of any such change,
extension, alteration or addition.
In witness whereof, this instrument has been duly executed by the Principal and Surety above
named, on [MONTH] [DAY], 20___.
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PRINCIPAL:
SUMMERHILL N40 LLC,
a California limited liabilit y company
By: SummerHill Homes LLC,
a California limited liability company
Its Manager
By:
Its:
By:
Its:
SURETY:
___________________________________
[PRINCIPAL]
By:
Its:
___________________________________
[Address]
___________________________________
[City, State, ZIP]
EXECUTION COPY
SMHH\54443\1441213.12 1
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of _____________________ )
On ____________________, before me, ____________________________, a Notary Public, 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
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of _____________________ )
On ____________________, before me, ____________________________, a Notary Public, 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
EXECUTION COPY
SMHH\54443\1441213.12 1
SUBDIVISION MONUMENTS BOND BOND NUMBER:
PREMIUM:
WHEREAS, the Town of Los Gatos, State of California (hereinafter called “Town”), and SummerHill
N40 LLC (hereinafter designated as “Principal”) have entered an agreement whereby Principal agrees to
install and complete certain designated public improvements, which agreement, dated [MONTH] [DAY],
20___, and identified as the Subdivision Improvement Agreement, is hereby referred to and made a part
hereof;
WHEREAS, said Principal is required, under the terms of said agreement, to furnish a subdivision
monuments bond; and
WHEREAS, under the terms of said agreement, Principal has submitted for approval to the Town a
final map, filed with the Town, with a certificate thereon by the engineer or surveyor responsible for survey for
the final map stating that some or all of the monuments will be set in the positions indicated on the final map
on or before specified later date; that pursuant to Sections 66495-66498 of the Subdivision Map Act, the
Town requires that the subdivider furnish to the Town a bond in an amount equal to the estimated cost of
setting such monuments not already set prior to recording of the final map, guaranteeing payment of the cost
thereof;
NOW, THEREFORE, we, the Principal and _____________, as Surety, are held and firmly bound
unto the Town in the amount of Amount ($Amount), lawful money of the United States, for the payment of
which sum well and truly be made, we bind ourselves, our heirs, successors, executors and administrators,
jointly and severally.
The condition of this obligation is such that if the monuments are set on or before [MONTH] [DAY],
20___, and the engineer or surveyor setting the final monuments shall have been paid, then this obligation
shall become null and void. Otherwise it shall be and remain in full force and effect.
As part of this obligation secured hereby and in addition to the amount of deposit specified above, it is
agreed that we shall pay the costs and reasonable expenses and fees, including reasonable attorney’s fees, if
any, incurred by the Town in successfully enforcing such obligation against us, all to be taxed as costs and
included in any judgment rendered.
Should the condition of this bond be fully performed, then this obligation shall become null and void,
otherwise it shall be and remain in full force and effect.
The Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to
the terms of said agreement or the specifications accompanying the same shall in any manner affect its
obligations on this bond, and it does hereby waive notice of any such change, extension, alteration or
addition.
In witness whereof, this instrument has been duly executed by the Principal and Surety above
named, on [MONTH] [DAY], 20___.
SMHH\54443\1441213.12 2
PRINCIPAL:
SUMMERHILL N40 LLC,
a California limited liability company
By: SummerHill Homes LLC,
a California limited liability company
Its Manager
By:
Its:
By:
Its:
SURETY:
___________________________________
[PRINCIPAL]
By:
Its:
___________________________________
[Address]
___________________________________
[City, State, ZIP]
EXECUTION COPY
SMHH\54443\1441213.12 1
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of _____________________ )
On ____________________, before me, ____________________________, a Notary Public, 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
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of _____________________ )
On ____________________, before me, ____________________________, a Notary Public, 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 th at 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
SMHH\54443\1441213.12 1 September 11, 2018
EXHIBIT A
INSURANCE REQUIREMENTS
A. MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1. Insurance Services Office form number GL 0002 (Ed. 1/73) covering Comprehensive General
Liability and Insurance Services Offices form number GL 0404 covering Broad Form Comprehensive
General Liability; or Insurance Services Office Commercial General Liability coverage (“occurrence”
form GC 0001).
2. Insurance Services Office form number CA 0001(Ed. 1/78) covering Automobile Liability, code 1 “any
auto” and endorsement CA 0025.
3. Worker’s Compensation insurance as required by the Labor Code of the State of California and
Employers Liability Insurance.
B. BEGINNING OF WORK
Subdivider shall maintain limits no less than:
1. General Liability: $1,000,000 combined single limit per occurrence for bodily injury, personal injury
and property damage. If Comprehensive General Liability Insurance or other form with a general
aggregate limit is used, either the general aggregate limit shall apply separately to this
Project/location or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: $1,000,000 combined single limit per accident for bodily inj ury and property
damage.
3. Workers’ Compensation and Employers Liability: Workers’ compensation limits as required by the
Labor Code of the State of California and Employers Liability limits of $1,000,000 per accident.
C. DEDUCTIBLES AND SELF-INSURED RETENTIONS
Any deductibles or self-insured retentions must be declared to and approved by the Town. At the option of the
Town, either: the insurer shall reduce or eliminate such deductibles or self -insured retentions as respects the
Town, its officers, official, employees and volunteers; or the Subdivider shall procure a bond guaranteeing
payment of losses and related investigations, claim administration, and defense expenses.
D. OTHER INSURANCE PROVISION
The policies are to contain, or be endorsed to contain the following provision:
1. General Liability and Automobile Liability Coverages
a. The Town, its officers, official, employees and volunteers are to be covered as additional
insured as respects: liability arising out of activities performed by or on b ehalf of the
Subdivider, products and completed operation of the contracts, premises owned, occupied or
used by the Subdivider, or automobiles owned, leased, hired or borrowed by the Subdivider.
The coverage shall contain no special limitation on the scope of protection afforded to the
Town, its officers, officials, employees, or volunteers.
SMHH\54443\1441213.12 2 September 11, 2018
b. The Subdivider’s insurance coverage shall be primary insurance as respects the Town, its
officer, officials, employees, and volunteers. Any insurance or self-insurance maintained by
the Town, its officers, officials, employees, or volunteers shall be excess of the Subdivider’s
insurance and shall not contribute with it.
c. Any failure to comply with reporting provision of the policies shall not affect coverage
provided to the Town, its officers, officials, employees, or volunteers.
d. The Subdivider’s insurance shall apply separately to each insured against whom claim is
made or suit is brought, except with respect to the limits of the insurer’s liability.
2. Workers’ Compensation and Employers Liability Coverage
The insurer shall agree to waive all rights of subrogation against the Town, its officers, officials,
employees, or volunteers for losses arising from work performed by the Subdivider for the Town.
3. All Coverages
Each insurance policy required by this clause shall be endorsed to state that the coverage shall not
be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty
(30) days prior written notice by certified mail return receipt required, has been given to the Town.
E. ACCEPTABILITY OF INSURERS
Insurance is to be place with insurers with a Best’s rating of no less than B+.
F. VERIFICATION OF COVERAGE
Subdivider shall furnish the Town with certificates of insurance and with original endorsements effecting
coverage required by this clause. The certificates 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 and
endorsements are to be on forms approved by the Town. Where, by statute, the Town’s workers’
compensation-related forms cannot be used, equivalent forms approved by the State Insurance
Commissioner are to be substituted. All certificates and endorsements are to be received and approved by
the Town before work commences. The Town reserves the right to require complete, certified copies of all
required insurance policies, at any time.
G. SUBCONTRACTORS
Subdivider shall include all subcontractors as insured under its policies or shall furnish separate certificates
and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the
requirements stated herein.