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CC Resolution No. 09-109 Stormwater Mgmt Facilities Operation & Maint, 10855 N. Stelling RdRESOLUTICIN N0. 09-109 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING EXECUTION OF A STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTENANCE AGREEMENT, STEELING PALMS OF CUPERTINO, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, 10855 N. STEELING ROAD, AMENDED MAP OF TRACT NO.9983 WHEREAS, there has been presented to the City Council a proposed stormwater management facilities operation and maintenance agreement between the City of Cupertino and owner, Stelling Palms of Cupertino, LLC, a I~alifornia Limited Liability Company, 10855 N. Stelling Road, Amended Map of Tract No. 99133, and said agreement having been approved by the City Attorney; NOW, THEREFORE, BE IT RESOL`JED THAT the Mayor and the City Clerk are hereby authorized to sign the aforementioned agreement on behalf of the City of Cupertino. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 7t" day of July 2009, by the follo~,ving vote: Vote Members of the Ci ' Council AYES: Mahoney, Sandoval, Santoro, Wang, Wong NOES: None ABSENT: None ABSTAIN: None ATTEST: APPROVED: / ~ City Clerk ~ Mayor, City of RECORDED AT THE REQUEST OF City of Cupertino WHEN RECORDED RETURN TO City Clerk's Office City of Cupertino 10300 Torre Avenue Cupertino, CA 95014-3255 SPACE ABOVE FOR RECORDER'S USE ONLY STORMWATER MANAGEMENT FACILITIES OPERATION AND MAIPVTENANCE AGREEMENT 10855 N„ Stelling Rd Amended Map of Tract No. 9983 THIS STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTENANCE AGREEMENT ("AGREEMENT") is made and entered into this ~~ day of v-~ , 2009, by Stelling Palms of Cupertino, LLC, a California limited liability company (hereinafter referred to as the "COVENANTOR") and the City of Cupertino, a municipal corporation (hereinafter referred to ~.s the "CITY"). RECITALS: This AGREEMENT is made and entered into with reference to the following facts: A. The CITY is authorized and required to regulate and control the disposition of storm and surface waters as set forth in the CITY's Stormwater Pollution Prevention and Watercourse Protection Ordinance, effective October 15, 2003 (the "ORDINANCE"). B. The COVENANTOR is the owner of ~i certain tract or parcel of land, more particularly described in Exhibit A attached hereto (the "PR.OPERTY"). C. The COVENANTOR desires to constrict certain improvements on the PROPERTY that may alter existing stormwater conditions on both the PROPERTY and adjacent lands. D. The CITY has reviewed and approved the Storm Water Management Plan subject to the execution of this AGREEMENT. NOW, THEREFORE, in consideration. of the benefit received and to be received by the COVENANTOR, its successors and assigns, as a result of the CITY'S approval of the Stormwater Management Plan, the COVENANTOR, hereby covenants and agrees with the CITY as follows: 1. 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, stonnwater management facilities ("FACILITIES") snore particularly described and shown in the Stormwater Management Plan prepared by JMH Weiss, Inc. and dated March 2008, which plans and any amendments thereto are on file with the Public Works Department of the City of Cupertino and are hereby incorporated by reference. 2. Covenants Running with the Land• Pro~ert~ubject to Agreement: All of the real property described in Exhibit A shall be subject to this AGREEMENT. It is intended and deternined that the provisions of this AGREEMENT shall run with the land and shall be binding on all parties having or acquiring any right, title or interest in the real property described in Exhibit A or any portion thereof and shall be for the benefit of each owner 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 tree 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. 3. Responsibility for Installation O eration and Maintenance: At their sole expense, the COVENANTOR, its successors and assigns, shall construct, operate and perpetually maintain the FACILITIES in strict accordance with the Stormwater Management Plan and any amendments thereto that have been approved b}~ the CITY or the ORDINANCE. 4. Facility Modifications: At their sole expense, the COVENANTOR, its successors and assigns, shall make such changes or modifications to the FACILITIES as may be determined as reasonably necessary by the CITY to ensure that the FACILITIES are properly maintained and continue to operate as originally designed and approved. Any changes or modifications may be made only with prior written authorization by the CITY. 5. Facility Inspections by the CITY: At reasonable times and in a reasonable manner as provided in the ORDINANCE and the Stormwater Management Facility Easement Agreement applicable to the FACILITIES, the CITY, its agents, employees and contractors, shall have the right of ingress and egress to the FACILITIES rind the right to inspect the FACILITIES in order to ensure that the FACILITIES are being properly maintained, are continuing to perform in an adequate manner, and are in compliance with the ORDINANCE, the Stormwater Management Plan and any amendments thereto approved by the CITY. Page 2 of 5 6. Failure to Perform Required Facilitti~ Repairs or Modifications: Should either the COVENANTOR or its successors and assigns fail to correct any defects in the FACILITIES in accordance with the approved design standards and/or the Stormwater Management Plan and in accordance with the law and applicable re€;ulations of the ORDINANCE within the time specified in a written notice from the CITY, the CITY shall have the right, under the Stormwater Management Facility Easement Agreement fog- the subject property, to enter the PROPERTY to perform remedial work, for which the CITY will collect reimbursement for such work from COVENANTOR. In addition, the CITY may pursue other such remedies as provided by law, including, but not limited to, such civil and ~~riminal remedies set forth in Sections 9.18.190, 9.18.230 and 9.18.250 of the ORDINANCE. 7. Inderrmity: The COVENANTOR, its successors and assigns, shall defend, indemnify, and hold the CITY harmless of and from any ~.nd all claims, liabilities, actions, causes of action, and damages for personal injury and property damage, including without limitation reasonable attorneys' fees, arbitration fees or costs an~3 court costs, arising out of or related to the COVENANTOR's, its successors' and/or assil;ns' construction, operation or maintenance of the FACILITIES except to the extent that such claims, liabilities, actions, causes of action, and damages arise out of or related to the CIT~''s negligence and/or intentional conduct or the negligence or intentional acts of any of the CITY's employees, agents, representatives, contractors, vendors, or consultants. 8. Obligations and Responsibilities of COVENANTOR: Initially, the COVENANTOR is solely responsible for the performance of the obligations required hereunder and, to the extent permitted under applicable law, the payment of any and all fees, fines, and penalties associated with such performance or failure to perform ender this AGREEMENT. Notwithstanding any provisions of this AGREEMENT to the contrary, upon the recordation of a deed or other instrument of sale, transfer or other conveyance of fee simple title to the PROPERTY or any portion thereof (a "Transfer") to a third party (the "Transferee"), the COVENANTOR shall be released of all of its obligations and responsibilities under this AGREEMENT accruing after the date of such Transfer to the extent such obli€;ations and responsibilities are applicable to that portion of the PROPERTY included in such Transfer, but such release shall be expressly conditioned upon the Transferee assuming such obligations and responsibilities by recorded written agreement for the benefit of the CITY. Such written agreement may be included in the Transfer deed or instrument, provided that the Transferee joins in the execution of such deed or instrument. A certified copy of such deed, instrument or agreement shall be provided to the CITY. The provisions of the preceding thrf;e sentences shall be applicable to the original COVENANTOR and any successor Trans~:eree who has assumed the obligations and responsibilities of the COVENANTOR under this AGREEMENT as provided above. 9. Property Transfer: Nothing herein shall be construed to prohibit a transfer by the COVENANTOR to subsequent owners and assigns. 10. Attorneys' Fees: In the event that any party 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 recov~;rable costs, expenses and damages. Page 3 of 5 11. Further Documents: The parties cove::lant 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. 12. Entire Agreement: This AGREEMENT constitutes the entire agreement of the parties with respect to the subject matter contained h~;rein and supersedes all prior agreements, whether written or oral. There are no representations, agreements, arrangements, or undertakings, oral or written that are not fully expressed herein. 13. Severability: In the event any part or provision of this AGREEMENT shall be determined to be invalid or unenforceable under the laws of the State of California, the remaining portions of this AGREEMENT th<<t can be separated for the invalid, unenforceable provisions shall, nevertheless, continue in full :force and effect. 14. 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. 15. Amendment: This AGREEMENT may be amended 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. 16. In the event that the CITY shall determine at its sole discretion at any future time that the FACILITIES are no longer required, then at the written request of the COVENANTOR, its successors and/or assigns, the CITY shall ex~;cute a release of this AGREEMENT which the COVENANTOR, it successors and/or assigns, shall record with the County of Santa Clara, at its/their expense. Page 4 of 5 Executed the day and year first above written. COVENANTOR: Stelling Palms of Cupertino, LLC, a California limited liability company By: eith Kolker, Vice-President r By: _ Linda Esp' za, V' e- esident CITY OF CUPERTINO: By: c Name: ,r r ~ L- , yll~ ~` „~' Title: ` < < Attach Notary acknowledgement Pagc; 5 of 5 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA ) COUNTY OF SANTA CLARA ) On May 5, 2009 before me, S. Howard, a Notary Public, personally appeared Keith Kolker and Linda Espinoza, who proved to me on the basis of satisfactory evidence to be the persons whose names are subscribed to the within insh-ument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, exe- cuted 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. S. HOWARD Commission #~ 1831595 Notary Public -California z Santa Clara County M Comm. Expires Jan 17, 2013 THE WITHIN CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT, DESCRIBED BELOW: Though the below information 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 Documents• Title or Type of Document: Stonnwater Management Facilities Operation And Mainte- nance Agreement - 10855 N. Stelling Rd, Amended Map of Tract No. 9983 Date of Document: Undated Number of Pages: 5 (w/o attachments, exhibits and/or certificate(s)) Signer(s) Other Than Named Above: City of Cupertino Capacities claimed b~si ners: Signer's Name: Keith Kolker Capacity Claimed: Vice-President Signer is representing: Stelling Palms of Cu~~ertino, LLC Signer's Name: Linda Espinoza Capacity Claimed: Vice-President Signer is representing: Stelling Palms of Cupertino, LLC Exhibit `A' Legal Description of "PROPERTY" All that certain real property situated in the City of Cupertino, County of Santa Clara, State of California, described as follows: Lots 1 through 21 of the Amended Map of 'T'ract No. 9983, as said map was filed for record in the Office of the Recorder of the County of Santa Clara, as File No. 19991681 on September 17, 2008, in Book 827 of Maps at Pages 21-26, C~~unty of Santa Clara. Said described area contains 1.105 acres, mort; or less. LAND ~ ~ ~ ~ Y 1 9 ~ ~ Expires: 12/31/10 ~~~TF CF L 1~o~~~P CA 07/08/08 Prepared By: JMH Weiss, Inc. F:Vobs\4583-Las Palmas-CuperiinoVvlaps\Agreements\4583-Stonnwater O&M Legal-070808.doc CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of `J C~~~- _ On '}~, (`'f (~~ before me, -~I w'-~l dk tL rl~ S + -~ yT~;~~ ~'l~-~ ~ Date Here Insert Name'and Title of the Officer ' personally appeared M l~'(~-G!- L/n/ ~-~ Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to b.: the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that hl;/she/they executed the same in his/her/their authorized c~~pacity(ies), and that by his/her/their signature(s) on the JullA KINS7 instrument the person(s), or the entity upon behalf of Commission # 1633129 which the person(s) acted, executed the instrument. Notary Public - California Santa ClaraCour~ty ~ I certify under PENALTY OF PERJURY under the laws Comm, as Jan 25 2013 of the State of California that the foregoing paragraph is trae and correct. 1A'ITNESS my hand and official seal. Signature ~!`~'p`' ~~"`~~ Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is nct required by law, it m~ y 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: ~~N+^~~'~ ~Gi(-"-~ ~~.-~-~~ (9~,o-~t.c~-uv~ ~ ~py,.~J~.Qnav~c~ Document Date: ~ ~ ~~~~ _ Number of Pages: 5 Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ^ Individual ^ Corporate Officer -Title(s): ^ Partner - ^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: Signer Is Signer's Nam ^ Individual ^ Corporate Officer -Title(s): _ ^ Partner - ^ Limited ^ Gene ^ Attorney in Fact ^ Trustee ^ Guardian or Coi ^ Other: Top of thumb here Signer Is Repre~nting: ©2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, C,a 91313-2402 • www.NationalNotaryorg Item #5907 Reorder: Call Toll-Free 1-800-876-6827