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08-115 Villa Serra Apartments MaintanenceRECORDING REQUESTED BY: City of Cupertino WHEN RECORDED, MAIL TO: City Clerk's Office City of Cupertino 10300 Torre Avenue Cupertino, CA 95014-3255 ~~IIIIIpVI~IIIIIY'~II~I'~~I ~a` Pages 8 No Fees RE.G 1 NA ALCOMENDRAS SANTA CLARA COUNTY RECORDER Rf~corded at the request of C ty RDE # 014 12/10/2008 248 PM NO FEE IN ACCORDANCE WITH GOV. CODE 6103 (SPACE ABOVE THIS LINE FOR RECORDER'S USE) MAINTANENCE .AGREEMENT VILLA SERRA APARTMENTS Original O For Fast Endorsement RECORDED AT THE REQUEST OF ) And ) WHEN RECORDED RETURN TO: ) SPACE ABOVE FOR RECORDER'S USE ONLY MAINTENANCE AGREEMENT THIS MAINTENANCE AGREEMENT (`'Agreement") is made and entered into this 3a- day of ~~~, 20G~ , by Villa Serra Apartments, a California Limited Partnership (hereinafter referred to as "Declarant" ), and the City of Cupertino ("City"). RECITt~I,S: This Agreement is made and entered into with reference to the following facts: A. Declarant is the developer of the real property and improvements that comprise the Villa Serra Apartments proiect ("Project") that is located within the City of Cupertino, County of Santa Clara, State of California ("City"). B. As set forth herein, the provisions of this E~greement are intended to and shall run with the Project and be binding upon all owners, successors and assigns of the Project, or any portion thereof. C. The purpose of this Agreement is to allocate the costs of maintenance, repair and replacement between Declarant and the City of certain improvements, including landscaping, that is situated on real property owned by City along Homestead Road and Stelling Road in front of the Project, and to establish certain criteria and procedures for the accomplishment of said maintenance, repair and replacement. NOW, THEREFORE the parties hereto agree as follows: 1. Covenants Running With the Land; Proper Subject to Agreement: All of the real property described in Exhibit "A" shall be subject to this Agreement. It is intended and determined that the provisions of this Agreement :;hall run with the land and shall be binding on all parties having or acquiring any right, title or in~:erest in the real property described in Exhibit "A" or any portion thereof and shall be for the ber.,efit of each owner of any of said parcels or any portion of said property and shall inure to the benefit of and be binding upon each successor in interest of the owners thereof. Each and all of the limitations, easements, obligations, covenants, conditions, and restrictions contained herein shall be deemed to be, and shall be construed as equitable servitudes, enforceable by any of the owners of any of the property subject to this Agreement against any other Owner, tenant or occupant of the said property, or any portion thereof. 2. Responsibility for Cost of Repair, Replacement and Maintenance: Delclarant shall, at its sole cost and expense, maintain, repair, replace, and keep in good condition all improvements and landscaping located on the portion of the City's property that abuts and fronts the Project along Homestead Road and Stelling Road to curb line, excepting there from the sidewalk abutting the property line of the Project which shall remain the maintenance responsibility of the City. 3. Definitions of Repair, Replacement and Maintenance: The repair, replacement and maintenance to be undertaken and performed under this Agreement shall include all work necessary to maintain the project in a good, useable condition under all weather conditions. Said Project shall be maintained to the standards, specifications and condition to which, at a minimum, they were originally constructed as evidenced by plans and specifications on file with the City of Cupertino and/or provided to the Owners. 4. Decisions Re ag rding Performance of this f~~reement: All decisions regarding the need for maintenance, the implementation thereof, and a.ny particular other matters of the Project shall be determined by the City. 5. Indemnity: Delcarant shall defend, indenviify, and hold City harmless of and from any and all claims, liabilities, actions, causes of action, and damages for personal injury and property damage, including without limitation reasonable attorney's fees, arbitration fees or costs and court costs, arising out of or related to the use and landscape maintenance of the Project described in paragraph number two, except to the extent that such claims, liabilities, actions, causes of action, and damages arise out of or relate to City's employees, agents, representatives, contractors, vendors or consultants. 6. Attorney's Fees: In the event that any parlay institutes legal action or arbitration against the other to interpret or enforce this Agreement, or to obtain damages for any alleged breach hereof, the prevailing party in such action or arbitration shall be entitled to reasonable attorneys' or arbitrators' fees in addition to all other recoverable costs, expenses and damages. 7. Further Documents: The parties covenant and agree that they shall execute such further documents and instructions as shall be necessary to fully effectuate the terms and provisions of this Agreement. 8. Entire Agreement: This Agreement constitutes the entire agreement of the parties with respect to the subject matter contained herein and ;supersedes all prior agreements, whether written or oral. There are no representations, agreements, arrangements or undertakings, oral or written, which are not fully expressed herein. 9. Severability: In the event any part or provision of this Agreement shall be determined to be invalid or unenforceable under the laws of the ~~tate of California, the remaining portions of this Agreement which can be separated from the ixivalid, unenforceable provisions shall, nevertheless, continue in full force and effect. 10. No Waiver: The waiver of any covenant contained herein shall not be deemed to be a continuing waiver of the same or any other covenant contained herein. 11. Recordation: It is anticipated that this Agreement shall be recorded and shall be executed and acknowledged in proper recordable form. 2 12. Amendment: This Agreement may be amf;nded in whole or in part only by mutual written agreement. Any such amendment shall be recorded in Santa Clara County, California. In the event any conflict arises between the provisions of any such amendment and any of the provisions of any earlier document or documents, the most recently duly executed and recorded amendment shall be controlling. Executed the day and year first above wrib:en. By: CITY OF CUP~RTINO ~~ By: Name: ~aJ ~ ~ ~ K~A PP Title: G:~-~-, Ma-~.4P ~ VILLA SERRA APARTMENTS, a California limited partnership By: Prom~ill, Inc., a California Corpora ,its gea~y~al partner J CALIFORNIA ALL-PURPOSE ACKNOVIILEDGMENT State of California County of ~A~~ i~~~~~ C`, On I~~e~i~4u_~,~~rZ~ittf~~'beforeme, Lt.~-r.:,,,; (r~ ~~r_a~,Z. ~~'7~1-~~a ~~;E~(C ate Here Insert Name and Title of the O er (~ (" personally appeared - ~~~~ ~-~~ ~ --i ~-*~ti=~ I ~` 1c ~ `~ ~~~ ~- Name(s) of Signer(s) - who Droved to me on the basis of satisfactory evidence to be the person whose name~e-subscribed to the withir) instrument and acknowledged to me that 4'li~sgl?ltl~ey executed the same in ~i~Lherltbeir authorized capacity~ies~, and that by~'2ir signaturs(~'on the instrument the persor~j, or the entity upon behalf of IEANN t.. SLATER whicf l the perso~acted, executed the instrument. Clolnunission ~ 1616003 Nouryr Public - Cstilforlnia ~ I certify under PENALTY OF PERJURY under the laws Sim MsMo CouMtf M Co~.E tns0et15 2012 of thE~ State of California that the foregoing paragraph is true ~tnd correct. WITNESS my ~ ~ s I. ~- ~ -~' Signature ~' Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: ~ 1' ~,,~+,~~;~~~.r;-~<<'~° / \t~+1 r/-i~11~'~i` i Document Date: ~~CT. ZZ 2.~C~ Number of Pages: • Signer(s) Other Than Named Above: ~~b.. '+ i~ ~~° r~Z'7 Capacity(ies) Claimed by Signer(s) Signer's Name: -~~ ,~ ~~~~~ , ~~~.• ~=- ^ Individual,- ~%Corporate Officer -Title(s): \~C`L ~2 e3 ~~v~" ^ Partner - ^ Limited ^ General ^ Attorney in Fact • ^ Trustee Top f thumb here ^ Guardian or Conservator ^ Other: Signer Is Representing: Signer's N e: C Individual C Corporate Officer itle(s): C Partner - ^ Limited ^ C Attorney in Fact C Trustee C Guardian or Conservator C Other: ~ Signer Is Re ©2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNOtary.org Item #5907 Reorder: Call Toll-Free 1-800-876-6827