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22-173 Agreement Regarding Offer of Dedication & Waiver of Future Reimbursement, 10165 Orange Ave, APN 357-16-059RECORDING REQUESTED BY: City of Cupertino WHEN RECORDED, MAIL TO: City Clerk's Office City of Cupertino 10300 Torre Avenue Cupertino, CA 95014-3255 NO FEE IN ACCORDANCE WITH GOV. CODE 27383 254 €2)835 € Regina Qlcomeridrasi SaMa Clara Courity - Clerk-Recorder 1l /28/2el22 02 : e5 PM Titles: 1 Pages: 13 Fees: $OJ%5 Taxes : $O Total:$21.Oe (SP ACE ABOVE THIS LINE FOR RECORDER'S USE) AGREEMENT REGARDING OFFER OF DEDICATION & WAIVER OF FUTURE REIMBURSEMENT 10165 0range Avenue, Cupertino, CA APN 357-16-059 0 0riginal 0 Conformed Copy "NO FEE" City of Cupertino CERTIFICATE OF ACCEPTANCE is hereby given in order to comply with tlie provisions of Section 27281 of the Government Code. is hereby accepted by the undersigned on behalf of the City Council of the City of Cupertino pursuant to authority conferred by Resolution No. 11-175 of the City Council adopted on October 4, 2011, and the grantee consents to recordation thereof by its duly authorized officer. Dated:1/116/ By: Public Works Director OFFICIAL BUSINESS. Document entitled to free recording per Government Code § 6103 and § 27383 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Cupertino 10300 Torre Avenue Cupertino, California 95014 Attn: Director of Public Works SP ACE ABOVE THIS LINE FOR RECORDING USE AGREEMENT REGARDING OFFER OF DEDICATION & WAIVER OF FUTURE REIMBURSEMENT, RIGHT OF ENTRY, AND LICENSE TO USE PROPERTY This Agreement Regarding Right of Entry, License, Offer of Dedication and Waiver of Future Reimbursement ("Agreement") is made and effective this 2/" day of A.f(! I , 202'2, by Tim R. Kurreck ("Owner") and the City of Cupertino, a municipal corporation ("City"). Owner and City may each be referred to as a "Party," or collectively as the "Parties." RECITALS A. Owner is tlie owner in fee of real property with a street address of 10165 0range Avenue in the City of Cupertino, County of Santa Clara, designated as Assessor's Parcel No. 357-16-059, more particularly described in Exhibit A (the "Site"). B. Section 14.04.110 of the Cupertino Municipal Code provides that if the City or another property owner installs improvements that benefit a propeity, the owner of the benefitted property is required to reimburse the City or the property owner for its reasonable share of the costs of such improvements when the benefitted propeity owner seeks a land use entitlement from City. Section 18.56.040 of the City of Cupertino Municipal Code imposes a similar reimbursement requirement. Both sections provide, however, that if a property owner dedicates necessary right-of-way to the City without charge, the City may enter into an agreement with the owner to waive future reimbursement requirements. C. City is in the process of trying to improve the walkability of routes to schools, particularly those areas lacking curb, gutter and sidewalk. The Orange Avenue Sidewalk project (the "Project") will construct those improvements. A portion of the Site is among those areas the City desires to improve. Owner agrees to extend a right of entry to City and a license to use the Dedication Area to construct improvements and allow public use of those improvements until the City owns the Dedication Area. D. Owner has agreed to dedicate to City that certain approximately 315 square foot portion of the Site as depicted in the diagram attached hereto and incorporated herein as Exhibit B and more -1- particularly described in the legal description attached hereto and incorporated lierein as (the "Dedication Area"), in consideration of the City's limited waiver of future reimbursement requirements, and to grant City a riglit-of-entry to the Dedication Area. NOW THERF,FORE, in consideration of the mutual promises, approvals, and covenants made by the Parties and other considerations, the value, adequacy and receipt of which are hereby aclaiowledged, the Paities agree as follows: 1. Right of Entry. Subject to the terins and conditions of this Agreement, Owner hereby grants to City, its contractors, subcontractors, employees, agents, invitees and the public a non-exclusive right to enter the Dedication Area for the purpose of constructing tlie Project on the Property and the right to remove any improvements presently within the Property to allow for construction of the Project, as well as to allow the public use of the Dedication Area upon completion of the Project on the Property. This Right of Entry shall expire and terminate upon the recordation of the City's acceptance of the Offer, as set forth in section 4.3 below. 2. Offer of Dedication. Owner does hereby irrevocably offer to dedicate in fee the Dedication Area for street, highway, public utility, public pedestrian, landscaping and any other public purpose (the "Offer"). The Offer is irrevocable and sliall be absolutely binding upon the Owner, its heirs, successors, assigns, and all persons claiming an interest in the Site through them. 3. Condition of Title: Removal of Liens. Owner shall work in good faith with City to remove any and all encumbrances or liens (other than the lien for current taxes not yet due and payable), including any deed of trust securing the obligation to pay a mortgage loan, encumbering all or any portion of the Dedication Area. With respect to deed(s) of trust, City, at its cost, shall prepare and provide to Owner the fori'ns of partial reconveyance instrument(s) required to remove the Dedication Area from the lien(s) of such deed(s) of trust. The removal of all such liens, including lien(s) of deed(s) of trust, shall be a condition precedent to the effectiveness of City's waiver of the rigl'it to future reimbursement as set forth in Section 6 below. The failure to obtain any reconveyance required by this Section 3 shall not otherwise limit City's or Owner's rights or obligations under this Agreement. 4.Time and Manner of Acceptance. 4.1 The Offer may be accepted by Resolution of the City Council of the City of Cupertino and not in any other manner. Any purported acceptance of the Offer by or on behalf of the City, other than in this manner, shall be null and void and of no force or effect. 4.2 The Offer shall remain in effect until accepted by Council Resolution. The Offer may not be teri'ninated, or the right to accept the Offer abandoned, except by Council Resolution in the same manner as prescribed for summary vacation of streets or highways by Part 3 (commencing with Section 8300) of Division 9 of the Streets and Highways Code. 4.3 Upon acceptance of the Offer, the City shall mail a copy of its Resolution of Acceptance to the then-owners of the Site at the address shown on the latest County of Santa Clara secured assessment roll and at the address listed in the Offer for notices. -2- 5. Use of Property Prior to Acceptance of Offer. Owner agrees tliat it will not use the Dedication Area in any way tliat will interfere witli the use of tlie Dedication Area for public riglit-of- way. 6. Limited Waiver of Reimbursement Requirement. Subject to satisfaction of the lien removal condition set forth in Section 3 above and the limitations of this Section 6, upon City's acceptance of the Offer, City hereby agrees to waive any and all future reimbursements for the costs of any improvements installed by City or its contractors on the Dedication Area ("City Work"), including reimbursements required by Sections 14.04.100 and 18.56.040 of the Cupertino Municipal Code, which may be cliarged to Owner at such time as Owner obtains a future land use entitlement with respect to the Site. This waiver of right to future reimbursement shall include only tlie costs of the City Work and sliall remain in effect for twenty-five (25) years following City's acceptance of the Offer. Notwithstanding any other provision hereof to the contrary, Owner shall remain obligated to pay any development impact fees, including roadway impact fees, and the costs of any other improvements required in connection with the applicable land use entitlement. Further, in recognition of the fact that the City Work improvements will have a limited useful life, following expiration of the 25-year period, City shall have the right to require Owner to fund the cost of reconstructing any public improvements within the Dedication Area that City could tlien lawfully require Owner to fund in the absence of this Agreement. 7. No Liens. The City will not permit to be filed or enforced against the Property, or any part thereof, any statutory lien for labor or materials (including without limitation any mechanics or materialmen's lien) or any claim for damages arising from City's use of, or activities on the Property with respect to the Project. 8. Indemnity. City shall indemnify, defend, and hold harmless Owner and Owner's officers, agents and employees against any and all liability, claims, actions, causes of action or demands arising out of, connected with, or caused by City or City's employees, agents, independent contractors, companies, or subcontractors use of the Propeity, except to the extent of Owner's negligence or willful misconduct. 9. Insurance. City shall maintain, or require its contractor to maintain, commercial general liability and comprehensive automobile policies that include, cover and insure the work performed on the Project and the terms and conditions of this Agreement, including the activities or operations of any contractor and its employees, agents, representatives and subcontractors under this Agreement. 10. Notices. Any notices which either Party may desire to give to the other Party under this Agreement must be in writing and may be given either by (i) personal service; (ii) delivery by a reputable document delivery service, such as but not limited to, Federal Express, which provides a receipt showing date and time of delivery; or (iii) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the Party as set forth below or at any other address as that Party may later designate by notice: -3- To City:City of Cupeitino 10300 Torre Avenrie Cupeitino, CA 95014 Attention: Public Works Director Witli a copy to:City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 Attention: City Attorney To Owner:Tim R. Kurreck 10165 0range Avenue Cupertino, CA 95014 11. Agreement Runs with Land; Recordation. The provisions of this Agreement shall inure to the benefit of and be binding upon the owners of the Site and their heirs, successors or assigns, and any other person claiming an interest in the Site through them. Upon execution, tliis Agreement shall be recorded in the Official Records of Santa Clara County. 12. Waiver of Furtlier Compensation. Owner hereby expressly and unconditionally waives any and all right to claim, demand, or receive any further compensation for the Dedication Area which Owner may be eligible to receive under the California Relocation Assistance Act (Government Code S,7260, et seq.), Article 1, 8, 19 of the California Constitution, the California Eminent Domain Law (Code of Civil Procedure §1230.010, et seq.), and/or the California Code of Regulations, Title 25 or other applicable local, state, or federal statute, ordinance, regulation, rule, or decisional law (collectively "Compensatory Laws"), including, but not limited to, the fair market value of the Dedication Area, severance damages, loss of goodwill, loss of profits, or relocation benefits and assistance, or claims for unreasonable precondemnation activities or inverse condemnation, or any other compensation as a result of the Parties' agreements hereunder or the City's acceptance of the Offer. Furthermore, Owner hereby expressly releases the City of Cupertino, and its respective officials, officers, employees, representatives, successors and assigns, from any liability, responsibility, or obligation to pay any further compensation for the Dedication Area which Owner may be eligible to receive under the Compensatory Laws as a result of City's acceptance thereof. 13. Authority to Execute. The person or persons executing this Agreement on behalf of Owner warrants and represents tliat he/she/they has/have the authority to execute this Agreement on behalf of Owner and warrants and represents that he/she/they has/have the authority to bind Owner to the performance of its obligations hereunder. 14. Entire Agreement. This Agreement embodies the entire integrated agreement and understanding between the Parties hereto. There are no other agreements or understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby, except as set forth herein above. 15. Amendments. This Agreement may only be terminated or modified in a writing executed by both Parties and recorded in the Official Records of Santa Clara County. -4- 16. Governing Law; Venue. This Agreement sliall be construed and enforced in accordance with tlie laws of the State of California, without reference to choice of law provisions. Any legal actions rinder this Agreement sliall be brouglit only in tlie Superior Court of the County of Santa Clara, State of California. 17. Interpretation. This Agreement sliall be construed according to its fair meaning, and not strictly for or against any Party. This Agreement shall be deemed to have been prepared jointly by tlie Paities hereto, and the teri'ns of this Agreement have been negotiated by tlie Parties and the language used in this Agreement shall be deemed to be the language chosen by the Parties to express their mutual intent. This Agreement sliall be construed without regard to any presumption or rule requiring construction against the Paity causing such instrument or any portion thereof to be drafted, or in favor of the Paity receiving a particular benefit under tlie Agreement. No rule of strict construction will be applied against any Party liereto. When used herein, the singular form of the word includes the plural fori'n in appropriate context. Use of the term "including" is meant to be without limitation, such as "including but not limited to" or similar. Section headings in this Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants or conditions contained in this Agreement. 18. No Partnership. Notliing lierein contained shall be construed to create a joint venture or partnership or to create the relationsliip of principal and agent or of any association between City and Owner. 19. Fuither Cooperation. Each Party liereto agrees to execute any and all documents and writings which may be necessary or expedient and do such other acts as will further the purposes hereof. 20. Successors and Assigns. This Agreement is binding upon and shall inure to the benefit of the respective successors, heirs, and assigns of the Parties. 21. No Third-Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the signatoiy Parties and their successors and assigns. No other person shall have any right of action based upon any provision in this Agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first written above. -5- CITY: CITY OF CUPERTINO, a California municipal corporation By: Throop City Manager [NotaryAcknowledgment Requiredl :PyPROVED7,77ffi: CChlwrisAtoffpOhrenreDyffl ATTEST: B)7: CllThrstCenleSrkquar' Wcl,(;7'zr/-.,- OWNER: Tim R. Kurreck, a married man who acquired title as an unmarried man By: Name: Title: [if applicableJ [NotaryAcknowledgment Requiredl -6- EXHIBIT A Legal Description of Site For APN/Parcel ID 357-16-059 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF CUPERTINO, CO{JNTY OF SANTA CLARA, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS: THE SOUTH 63.O FEET OF SECTION 77 BY A U1%TIFORA4 DEPTH OF 105.15 FEET (MEAS{JRED FROM THE WEST LINE OF ORANGE AVENUE) AS THE SAME ARF, SO DESIGNATED AND DELINEATED UPON THAT CERT AIN MAP ENTITLED, "MAP OF SUBDIVISION "A", MONTA VISTA", AND WHICH SAID MAJ' WAS FILED FOR RECORD IN THE OFFICE OF THE CO[JNTY RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, ON APRn, 11, 1917 IN BOOK "P" OF MAPS, AT PAGE 20. EXCEPTING THEREFROM T.F-IAT PORTION CONVEYED TO THE COUNTY OF SANTA CLARA BY DEED RECORDED FEBRUARY 24, 1954, RECORDING N0. 953468, BOOK 2820, PAGE 584, OFFICIAL RECORDS. Exhibit A I S891 7'06"E I 5'01 15' I 25' RIGHT OF WAY n (*315 SQ F'Q 0 ; l-I- i -o I LLI DOC 16078800 'n APN 357-16-059 -=t kn o o z I .1 'C%I =nl-t -,, i"'ao"No-v7rabv-c"xup- rs - - - a a o a - = - - -, it '-POB - N891706 W 0 5.00' i "'LLI :) z LLI > <l uu 0 z &I o 25' 20' I I I LOMITA AVENUE -.,) N i ------------l h m,,b.c/O%,OSh I_ or_ i !5 3io LEGEND ll*( NO. B"O-/Ti)l _l- ------- Th,s'r-' -%- q ix. ,_ ao pv POB POINT OF BEGINNING ffFCAL,s -,,%,"i SHEET 1 0F 1 Dots: 2021-01-25 - --1a570 6aa-klaandRoad*aa-mo+8)'=;7-!2oHa ' San Jose, CA 95131 HMHca.com EXHIBIT "B" PLAT TO ACCOMPANY DESCRIPTION: , RIGHT OF WAY CUPERTINO CALIFORNIA Designed: LA Drawi: RF Checked: TG Prl Sy.: .ic 489303PL34 January 25, 2021 HMH 4893.03/5283.04 Page I of 1 EXHIBIT "C" RIGHT OF WAY REAL PROPERTY in the City of Cupertino, County of Santa Clara, State of California, being a portion of that parcel of land described in the Grant Deed recorded January 29, 2002, in Document No. 16078800 of Official Records, Santa Clara County Records, described as follows: BEGINNING at the southeasterly corner of said parcel of land being on the general westerly line of Orange Avenue; Thence along said general westerly line, North 89o17'06" West, 5.00 feet, to a line parallel with and 20 feet westerly of the centerline of Orange Avenue; Thence along said parallel line, North 00o54'52" East, 63.00 feet, to the northerly line of said parcel of land; Thence along said northerly line, South 89o17'06" East, 5.00 feet, to the westerly line of Orange Avenue; Thence along said westerly line, South 00o54'52" West, 63.00 feet, to the POINT OF BEGINNING. Containing 315 square feet, more or less. 489303LD34 - ROW.docx 15700aklandRoad l SanJose,Califomia95131 l (408)487-2200 l (408)487-2222Fax I www.HMHca.com CA_LIFOR_NIA .=!J_,L-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California CO unty of Santa Clara 0n June 1 i2022 before me, Lauren Sa';'udar , Notary Public, (Here insert naine and title of the officer) personally appeared J'm ThrOo';' who proved to me on the basis of satisfactory evidence to be th6- (s) whose e(s) idare subscribed to the witMn instniment and acknowledged to me that EI6he/they executed the same in ffi/her/their authorized l(ies), andthatby&./her/their(s) ontheinstrumentthQs), orthe entityuponbehalfof which th6(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. ''%m- . - ahewAk4 a i., uueix SAPaoAR %h -=- . [ m'l hand and OffiCial Seal. =< ,.' - Notary Public California 2 H Santa Clara Countv ".% Commisston # 'zoiss - / ,x ____ j ""a'-""'o" lAy Comm. Exptres Jun 22. 2022 6;7,7, < / / t I /I /]Lr' ' /k{tv-iyi Qi-aT S ffiEmlatiimviaii---_--=-Jl Siid"ture/'fNotaryPublic ""'a""""' -+-*e''o==""""'a"' l? Y ADDITIONAL OPTIONAL INFORM_ATION INSTRUCTIONS FOR COMPLETING THIS FORM Any acknowledgment completed in California must contairr verbiage exact1y as DESCRIPTION OF TaHE AITACHED DOC{_JMENT appears above in the notary section or a separate aclmowledgment form must be properly completed and attached to that document. The only exception is iy a document is to be recorded outside of Calffirnia. In such instances, any alternative (Title or descriph'on ofattached document) aClalOWleagmen[ VerDlage aS mail De prln[ea On SliC/l a aOCument SO rang aS the verbiage does not require the notary to do something that is illegal for a notary in California (i.e. cer'fying the authorized capacity of the signer). Please check the (Titleordescriph'onofattacheddocumentconhn'ued) aOCumentCareJull)lJOrprOpernOrarlalWOralnganaa[[aCnmlSJOrmgreqlllrea. * State and County information must be the State and County where the document NumberofPages- DocumenIDa'e signer(s)personallyappearedbeforethenotarypublicforacknowledgment. * Date of notarization inust be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. (Additional infonnation) * The notary public must pit his or her name as it appears within his or )l(Hy cominission followed by a conuna and then your title (notary public). ii Pit the naine(s) of document signer(s) who personally appear at the time of notarization. CAPACIIY CLAIMED BY THE SIGNER ' IndiCate the C(ffeCt Singula' Or plural fonns by crossing offinconect fonns (i.e. I m/she/4hey. is /as ) or circling the coirect forms. Failure to correctly indicate this€ Individual(s) . . . . . uformation may lead to re_lechon of document recorduxg. 0 Corporate Officer * The notary seal iinpression must be clear and photogmphically reproducible. Impression n+ust not COVer text Or lines. If seal iinpression smudges, re-seal if a (Title) sufficient area permits, otherwise complete a different acknowledgment form. € Partner(s) * Signature of the notaiy public must match the signahire on file with the office of the coumy clerk. € A'o-eY-in-Fac" / Additional infomnation is not required but could help to enSlffe this []Trustee(s) acknowledgmentisnotmisusedorattachedtoadifferentdocument. @ Other <I Indicate title Or type of attached document, number of pages and date. - 9 ln(llCate tne CapaCtt'7 ClallIlea OY [ne Slgllerl it tne clalme(l CapaClt7 18 a corporate officer, indicate the title (i.e. CEO, CFO, Secretary). * Securely attach this docuinent to the signed docuinent I C2004-20l5P+oLinkSigningSei'vice.Inc -AIIRightiReiervedwwwThePioLtnkcom-NationivideNoiarySemce CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the trutMulness, accuracy, or validity of that document. State of Califoinia I Countyof SantaClara :,:,, ':l'l on "4P:;S ""a' ""z" before me' lauren Sapud(Haerreinsertnameandtitleoftheofficer), Notary Public, personallyappeared a'l,',rv"s kurrscL (ies), add that by(Eb/her/their(s) on the instrument the m(s), or the entity upon behalf of I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. I (Notary Seal) 4 LALIREN SAPuDaR Notary Public - California : Santa Clara County Commission # 224;/155 My Comm. E;tpires Jun 22. 2022 t ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOC'[JMENT (Title or description of attached document) (Title or description of attached document continued) Number of Pages Document Date (Additional infomiation) CAPACITY CLAIMED BY THE SIGNER [] Individual (s) [1 Corporate Officer (Title) [1 Partner(s) [] Attorney-in-Fact [1 Trustee(s) g Other INSTRUCTIONS FOR COMPLETING THIS FORM Any aclmowledgment completed in Cat@rnia must contain verbiage exactly as appears above irr the notary secaon or a separate acknowledgment form nurst be properly compieted and attached to that document. The only excepkin is f a documerxt is to be recorded outside of CaLfirnia. In such instances, any alternative aclmowledgment verbiage as may be printed on such a document so long as the verbiage does not require the notary to do something that is illega( pr a notary in Cal@rnia (i.e. certifying the authorized capac% of the signer). Please check the documentcarefidly forpropernotarialwordingand attach this form ifrequired. State and County information must be the State and Coiuity where the dociunent signer(s) personally appeared before'the notary public foracknowledgment. Date of notar'Lzation must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. The notary public must pit his or her name as it appears within his or her commissionfollowedbyacommaandthenyour title(notarypublic). P it the name(s) of'document signer(s) who personally appear at the time of notanzahon. Indicate the correct singular or plural forms by crossing off inconect forms (i,e, he/sheAhey7- is 7era ) or circling the correct fomis. Failure to conectly inicate this information may lead to rejection of document recording. The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re-seal if a sufficient area permits, otherwise complete a different acknowledgmentform. Signature of the notary public must match the signature on ffle with flie office of the county clerk. <* Additional infomiation is not required but could help to ensure this acknowledgment is notmisused or attachedto a different document. * Tndicatetitleortypeofattacheddocument,numberofpagesanddate. *> Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary). Securely attach this document to the signed document C2004-20l5Pro[inkSignlngSemce.Inc.- AIIRIghtsReservedwwwTheProLink.com-NationwideNotarySemce