20-061 Amendment #2 dated 12-20-22 Stormwater Management Facilities Operation and Maintenance Agreement, APN 316-06-062, APN 316-06-063, APN 316-06-064, APN 316-06-065RECORDING REQUESTED BY:
City of Cupertino
WHEN RECORDED, MAIL TO:
City Clerk's Office
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014-3255
NO FEEINACCORDANCE
WITH GOV. CODE 27383
25417976
Regina Qlcomendras
Santa Clara Courity - Clerk-Recorder
12/20/2022 11 34 Qrl
Titles: 1 Pages : 9
Fees: $OJ2N))
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(SPACE ABOVE TH[S LINE FOR RECORDER'S USE)
STORMWATER MANAGEMENT FACILITIES OPERATION, AND
MAINTENANCE AGREEMENT
APN 316-06-062, APN 316-06-063, APN 316-06-064, APN 316-06-065; First
Amendment Dated 7/15/20; Second amendment dated 11/28/22
0 0riginal
0 Conformed Copy
SECOND AMENDMENT TO STORMWATER MANAGEMENT
FACILITIES OPERATION AND MAINTENANCE AGREEMENT
APN: 316-06-062, 316-06-063, 316-06-064, 316-06-065
THIS SECOND AMENDMENT TO STORMWATER MANAGEMENT FACILITIES
OPERATION AND MAINTENANCE AGREEMENT (this "2nd Amendment") is made and
enteredinto this l day of NevtvMhe':r , 2021(the "Effective Date"), by and between
the City of Cupertino, a municipal corporation ("City") and Apple Inc., a California corporation
("Covenantor"). Covenantor and City are referred to collectively herein as the "Parties" and each
individually as a "Party."
RECIT ALS
This Amendment is made and entered into with reference to the following facts:
A. The City and Covenantor entered into that certain Stormwater Management Facilities
Operation and Maintenance Agreement, recorded in the Official Records of the County of Santa
Clara on March 9, 2020 as Document No. 24424906 ("Agreement")
B, The City and Covenantor entered into that certain First Amendment to Stormwater
Management Facilities Operation and Maintenance Agreement, recorded in the Official Records
of the County of Sarita Clara on September 11, 2020 as Document No. 24609830 ("1"'
Amendment"). The Agreement as amended by the Ist Amendment is referred to herein as the
"Agreement."
C. The Covenantor is the owner of certain real properly more particularly described in
Exhibit A of the Agreement.
D. Pursuant to the Stormwater Management Plan prepared by Luk and Associates dated
October 4, 2016, and revised on September 11, 2020, and further revised on July 22, 2022 by Kier
& Wright, Inc., which is on file with the Public Works Department of the City, Covenantor has
constnucted certain improvements in the vicinity of the building now known as Apple Visitor
Center (which is in the location labeled "Visitor Center Building" on Exhibit B to the Agreement).
E. City and Covenantor desire to modify the Agreement on the terms and conditions set
forth herein.
AGREEMENT:
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, City and Covenantor agree to amend the Agreement as of the
Effective Date as follows:
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1. Definitions. All capitalized terms not otherwise defined in this 2"d Amendment shall
have the meanings assigned to such terms in the Agreement.
2. Recitals. Recital D of the Agreement is hereby deleted in its entirety and replaced
with the following:
"To minimize adverse impacts due to these anticipated changes in existing storm and
surface water flow conditions, the Covenantor is required by the City to build and maintain, at
Covenantor's expense, stormwater management and trash capture facilities ("Facilities") as more
particularly shown in Exhibit B and Exhibit B-l and described in the following: (a) Stornnwater
Management Plan prepared by Luk and Associates dated May 15, 2016; (b) Stormwater
Management Plan prepared by Luk and Associates dated July 3, 2016; (c) Stormwater
Management Plan prepared by Luk and Associates dated October 4, 2016 and revised on
September 11, 2020, and further revised on July 22, 2022 by Kier & Wright, Inc.; and (d)
Stormwater Management Plan prepared by Luk and Associates dated December 13, 2018, which
plans, together with any and all amendments, including future amendments, thereto (collectively,
the "SWA/IP"), are on file with the Public Works Department of the City of Cupertino, California,
and are hereby incorporated by reference."
3. Exhibits, The document attached hereto as Exhibit B-2 is hereby incorporated into
the Agreement as Exhibit B-2 which supersedes a portion of Exhibit B attached to the Agreement
in the location labeled as "Visitor Center Building".
4. Recordation; Amendments. City, at Covenantor's expense, shall cause this 2ad
Amendment to be recorded in the Official Records of Santa Clara County, California ("Official
Records") promptly following execution hereof. The Agreement may be amended further in whole
or in part only by mutual written agreement. Any such amendment shall be recorded in the Official
Records.
5. Effect of Amendment. Except as otherwise revised by this 2ad Amendment, all terms
and conditions of the Agreement and the Ist Amendment shall remain unchanged and in full force
and effect. This 2" Aanendment may be executed in counteiparts, each of which shall be deemed
an original, and together shall constitute one and the same document. Signatures to this 2ad
Amendment created by the signer by electronic means and/or transmitted by email, telecopy or
other electronic means shall be treated as original signatures and shall be valid and effective to
bind the Party so signing. The caption and section headings of this 2ad Amendment are inserted
for convenience of reference only and shall in no way define, describe or limit the scope or intent
of this 2"d Amendment or any of its provisions. This 2' Amendment shall be binding upon and
inure to the benefit of the Parties hereto and, their successors and assigns (subject to the terms and
conditions of the Agreement and lst Amendment relating to assignment, subletting or other
transfers); shall be governed by and construed in accordance with the laws of the State of
California applicable to agreements made and to be wholly performed within said State; and may
not be modified or amended in any manner other than by a written agreement signed by both
Parties. If any term or provision of this 2"d Amendment or the application thereof to any persons
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or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this 2"
Amendment or the application of such term or provision to persons or circumstances other than
those as to which it is invalid or enforceable shall not be affected thereby, and, except to the extent
invalid or unenforceable as described in this sentence above, this 2"d Amendment shall remain
valid and enforceable to the fullest extent permitted by law. This 2"d Ainendment constitutes the
final and complete expression of the Parties' agreements with respect to the subject matter of this
2ad Amendment, and any prior negotiations or transmittals with respect to the subject matter of
this 2"d Amendment shall be of no force or effect. City and Covenantor agree and acknowledge
that this 2"d Amendment has been freely negotiated by both Parties; and that in any controversy,
dispute, or contest over the meaning, interpretation, validity, or enforceability of this 2ad
Amendment or any of its terms or conditions, there shall be no inference, presumption, or
conclusion drawn whatsoever against either Party by virtue of that Party having drafted this 2"d
Amendment or any portion thereof.
[SIGNATURES ON FOLLOWING PAGE]
-3-
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first above written.
COVENANTOR:
Apple Inc., a California corporation
CITY:
City of Cupertin i, a rtJJcipal corporation
BY
Title: C-ilY dvc-ts €tf
Notary acknowledgment to be attached)
ATTEST:
VED S TO
'7, City Attorney
CAI_,IFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT
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State of California
Countyof 5c4r=,*"qLl(Hr,z.
onNt*aia!it'r2e' 2(>2_2-beforeme,"'k(-eyqc(z;I T:zza<(qx) ,NotaryPublic,[ (Here insert name and title of the officer)
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I certify under PENALTY OF PERJ[_JRY under the laws of the State of California that the foregoing paragraph
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WITNESS my hand and official seal. I z ffl .,, , _ s _" r 1 TERENCIATERVAL:is-"'-(
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On 'T'k:'ti'.vtxb<t- /')' AtL_ before me, Lauren Sa9uda" , Notarv Public_
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M,.,"o' uupissapuDap f
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WITNE8aS my hand and official seal. Notary Public - California ,
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Exhibit B-2
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3350 Scott Boulevard, Buildlng 22 Phone: (408) 727-6665
Santa Clara, California 95054 www.klerwright.com
EXHIBIT B-2
REVISED BMP FOR APPLE VISITOR CENTER
APPLE, INC.
CUPERTINO, CALIFORNIA
DATE AU(;UST,2022
SCALE 1"=80'
BY DP
JOB NO. A21093
SHEET l OF l
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