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Attachment 3EXECUTION COPY SMHH\54443\1441213.12 1 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 SMHH\54443\1441213.12 2 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. SMHH\54443\1441213.12 3 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. SMHH\54443\1441213.12 4 (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. SMHH\54443\1441213.12 5 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. SMHH\54443\1441213.12 6 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 SMHH\54443\1441213.12 7 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. SMHH\54443\1441213.12 8 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. SMHH\54443\1441213.12 9 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___. 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 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___. SMHH\54443\1441213.12 2 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.