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09-059 Evershine VI, Stormwater Mgmt & Maintenance AgreementRECORDING REQUESTED BY City of Cupertino WHEN RECORDED MAIL TO City Clerk's Office City of Cupertino 10300 Torre Avenue Cupertino, CA 95014-3255 WIWi~I!li~~!WAll~i~l~ll~~ Pages 10 Fees.... * No Fees Taxes... Copies.. AMT PAID REGINA ALCOMENDRAS SANTA CLARA COUNTY RECORDER Recorded at the request of City RDE # 911 6/09/2099 129 PM ;SPACE ABOVE THIS LINE FOR RECORDER'S USE) NO FEE /N ACCORDANCE WITH GOV. CODE 6103 STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTENANCE AGREEMENT County Assessor's Parcel #?~69-06-009 and 369-06-010 Original ~ For Fast Endorsement RECORDED AT THE REQUEST OF and WHEN RECORDED RETURN TO: Cit}• Clerk's OMice ) Cite of Cupertino 10300 Torre ;'\venue ) Cupertino, C:-\ 95014-3255 ) SPACE ABOVE FOR RECORDER'S USE ONLY STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTENANCE AGREEMENT County Assessor's Parcel #E369-06-009, 369-06-010 THIS STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTENANCE AGREEMENT ("AGREEMENT") is made and entered into this 3~~ day of - ~ v~e.> , 2009, by Evershine VI, L.P., A California Limited Partnership (hereinafter referred to as "COVENANTOR") and the City of Cupertino ("CITY"). RECITALS: This AGREEMENT is made and entered into with reference to the following facts: A. The CITY is authorized and required to re€;ulate and control the disposition of storm and surface waters as set forth in the CITY's Stormwa~:er Pollution Prevention and Watercourse Protection Ordinance, effective October 15, 2003 (;the "ORDINANCE"). B. The COVENANTOR is the owner of a cer~:ain tract or parcel of land more particularly described in Exhibit "A" attached hereto (the "PROPERTY"). C. The COVENANTOR desires to construct certain improvements on the PROPERTY that may alter existing stormwater conditions on both t:he PROPERTY and adjacent lands. D. To minimize adverse impacts due to these ;~rtticipated 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 facilities ("FACILITIES"), more particularly described and shown in the Storrnwater Management Plan prepared by FINAL -1- 11 /25/03 Underwood & Rosenblum, Inc.,and dated October 1, 2007, which plans and any amendments thereto, are on file with the Public Works Department of the City of Cupertino, California, and are hereby incorporated by reference. E. The CITY has reviewed and approved the ;norm 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 COVENANTER, hereby covenants and agrees with the CITY as follows: 1. Covenants Running With the Land; Property Subject to Agreement: All of the real property described in Exhibit "A" shall be ~~ubject to this AGREEMENT. It is intended and determined that the provisions of this ~,GREEMENT 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" ("PROP]ERTY") or any portion thereof and shall be for the benefit of each owner of any of said pa~•cels 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, ea;:ements, 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 Installation, Operation a~1d 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 Managemet Plan and any amendments thereto that have been approved by the CITY or the ORDINANCE. 3. Facility Modifications: At their sole expense, the COVENANTOR, its successors and assigns, shall make such changes or modifications to the FACILITIES as maybe 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. 4. Facility Inspections by the CITY: At reasonable times and in a reasonable manner as provided in the ORDINANCE and the Stormwater Facilities Easement Agreement applicable to the FACILITIES, the CITY ,its agents, employees and contractors, shall have the right of ingress and egress to the FACILITIES and 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 FINAL -2- 11 /25/03 ORDINANCE, the Stormwater Management Plan and any amendments thereto approved by the City. 5. Failure to Perform Required Facility 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 regulations of the ORDINANCE within the time specified in a written notice from the CITY, the CITY shall have the right, under the Stormwater Management Easement Agreement for 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 I~rovided by law, including, but not limited to, such civil and criminal remedies set forth in Sections 9.18.190, 9.18.230 and 9.18.250 of the ORDINANCE. 6. Indemnity: The COVENANTOR, its successors and assigns, shall defend, indemnify, and hold the 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 attorneys' fees, arbitration fees or costs and court costs, arising out of or related to the COVENANTORS, its successors' and/or assigns' 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 CITY'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. 7. Obligations and Responsibilities of COVE:L~TANTOR: 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 under this AGREEMENT. Notwithstanding any provisions of this AGREEMENT to the contrary, upon the recordation of a deed or other ins~:rument of sale, transfer or other conveyance of fee simple title to the Property or any porti~~n thereof (a "Transfer") to a third party (the "Transferee"), the COVENANTOR shall b~e released of all of its obligations and responsibilities under this AGREEMENT ~iccruing after the date of such Transfer to the extent such obligations and responsibilities are applicable to that portion of the PROPERTY included in such Transfer, bust such release shall be expressly conditioned upon the Transferee assuming such obligations and responsibilities by recorded written agreement for the benefit of the CITY. Su~:h written agreement maybe 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 three sentences shall be applicable to the original COVENANTOR and any successor Transferee who has assumed the obligations and responsibilities ofthe COVENANTOR under this AGREEMENT as provided above. FINAL -3- 11 /25/03 8: Property Transfer: Nothing herein shall be; construed to prohibit a transfer by the COVENANTOR to subsequent owners anti assigns. 9. 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 recoverable costs, expenses and damages. 10. 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. 11. 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 that are not fully expresses herein. 12. Severability: In the event any part or provision of this AGREEMENT shall be determined to be invalid or unenforceable ixnder the laws of the State of California, the remaining portions of this AGREEMENT :hat can be separated for the invalid, unenforceable provisions shall, neverthele:;s, continue in full force and effect. 13. No Waiver: The waiver of any covenant c~~ntained herein shall not be deemed to be a continuing waiver of the same or any other covenant contained herein. 14. Amendment: This AGREEMENT maybe amended in whole or in part only by mutual written agreement. Any such amendment ;;hall be recorded in Santa Clara County, California. In the even any conflict arises between the provisions of any such amendment and any of the provisions of arty earlier document or documents, the most recently duly executed and recorded amendment shall be controlling. 15. In the event that the CITY shall determine at its sole discretion at any future time that the FACILITIES are no longer required, then pit the written request of the COVENANTOR, its successors and/or assigns, the city shall execute a release of this AGREEMENT which the COVENANTOR, it successors and/or assigns, shall record in the Clerk's Office, at its/their expense. FINAL -4- 11 /25/03 Executed the day and year first above written. (COVENANTOR) Name: ~h h; e M N, C~~ ~n _ Title: Mcrn~r~i~~ p~~r~-ner _ (Notary acknowledgment to be attached) CITY OF CUPERTINO By: ~ (,/ Name: , w Title: ~ ~, Mu.~~ FINAL -5- 11/25/03 "EXHIBIT A" Legal Description THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF CUPERTINO, COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: All of Parcel B and C as shown upon that cert;~in Map entitled, "Parcel Map being a portion of Lot 3 `Map of Craft Estate Partitior.~' (L-M-28), which Map was filed for record in the office of the Recorder of the Colmty of Santa Clara, State of California, on August 14, 1978 in Book 424 of Maps, at pages 39 and 40. Excepting there from the underground water rights as quitclaimed to the City of Cupertino, a municipal corporation, recorded .August 8, 1977 in Book D056 at page 310, Official Records of Santa Clara County. May 21, 2009 Page 1 of 1 CALIFdRNIA ALL-PURPOSE ACKNOWLEDGMENT ~' _ •.F:c . :. -- ..r=c-= ..crc~`~.ec- ; „~c>cf~..=~.~.ct~~crc~- - ..c:~,c-~,n:c~.ct~~uY`.c~.c~c-..ter. - , - ,c-~.e~..c~+:erc~rce~.~re~..c=z^~.cser State of California 1 County of SAN ?l4 C L ~ ~~; J On M ~ D before me, f'i~T~01JY ~ L LSE l~(O'I ~}~ `( Pl~l,(31•~ ~ Dai A • / Nere Insert Name an ille of the O 'cer personally appeared l7 NN 1 ~ /n . N . C y~ N 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. y,...,.~,.~. -=---- - ANTHONY T. LEE Commission # 1741794 Y ,-: _ Notary Public - California ~ Santa Clora County MyCorrm. ExplreaApr21S, 2011 Place Notary Seal Above I certif~r under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my han nd official seal. Signature ~ Signat 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 reattachme~~t of this form to another document. Description of Attached Document Title or Type of Docur~ ent~T~~ i~ W~} ! ~. ,ttN 3~ w4 R t N ~t-~R~l c ~ Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) ivy Nu~T Pages: ~•--- Signer's Name: ~----- Signer's Name: [_) Individual ^ Individual ^ Corporate Officer -Title(s): LJ Partner - ^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: Signer Is Representing Top of thumb here O Corporate Officer -Title(s): [ I Partner - ^ Limited ^ General ^ <~ttorney in Fact ^ l--rustee ^ (guardian or Conservator ^ Other: Signer Is Representing Top of thumb here --_: - ~_ _ _ __. ~ - _ Wiz. ~ - _ _ _ _ _ _ _ _ ®2007 National Notary Association • 9350 De Soto Ave., PO. (Sox 2402 • Chatsworth, CA 91313-2402 • www.NationalNotaryorg Item k5907 Reorder: Call Toll-Free 1 800-876-6827 CALIFORNIA ALL-PURPOSE ACKNOIJVLEDGMENT State of California County of ~G~ ~-4-~~ On ~ ~ ~ (U~ before me, ~ \ ~.~_~\C~: ~L-~ ~S{-- Q~ o'~ ~~,. ~U--~~,~ Date Here Insert Name and T~ le of the Officer personally appeared JULIA KILT C I tq~12! N~Wy /Ir~Me - >iMl~ tars CeMNY Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be tree person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/sloe/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 th~~ State of California that the foregoing paragraph is true and correct. WITIJESS my hand and official seal. Signature C~"1'`'~ Signature of Notary Public OPTION~~L 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 reattachrnent of this form to another document. Description of Attached Document ! _ - Title or Type of Document: ~~ 6V /Y~ t~kL~T-+' t''~L;-ML~CC~,LrV~.~' \ ~~'tCS~ C~^~c Document Date: l1? ~ ~ ~~ Number of Pages: ~0 tnl~t/D~u-~:~e'~1_d~C~~ Signer(s) Other Than Named Above: r' 1~'~UX~'~ t/~~~ Capacity(ies) Claimed by Signer(s) Signer's Name: ^ Individual ^ Corporate Officer -Title(s): ^ Partner - ^ Limited ^ General _ ^ Attorney in Fact • ^ Trustee Top of thumb here ^ Guardian or Conservato ^ Other: Signer Is Repr senting: ;signer's Name: ^ Individual ^ Corporate Officer -Title(s): C ] Partner - ^ Limited ^ Gener _ C] Attorney in Fact • C ]Trustee T f h h ^ Guardian or Conservator ^ Other: ;signer Is Representing op o t umb ere ©2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91:313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1-800-876-6827 i'2y1!M At.:lti. 4,tEt~t '~ +w~s~~ne~ Wnolilr~ • ~q ~~NM t ~ ~~NO F'EE" City of Cupertino CERTIFICATE OF ACCEPTANCE is hereby given in order to comply with the provisions of Section 27281 of the Government Code. This is to certify that the maintenance agreerr..ent with Evershine VI, LP and the City of Cupertino, a governmental agency, i~, hereby accepted by the City of Cupertino on June 3rd, 2009, and the grantee consents to recordation thereof by its duly authorized officer. Dated: June 5, 2009 By: ~~~ Julia st Senior Office Specialist