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02-048 Atoria HOA - Public Plaza maint.f f.: 1 I.i,l ~ ~ ~ V (. { RECORDED AT THE REQUEST OF ) Doc# ~ 16346845 and ) 7/08/2002 11 42 AM WHEN RECORDED RETURN TO: ) Z ^:`~1~_'Ei~.is~iF~) ~!1;~Y: ?'his cloeumcnt has Taylor Woodrow Homes, Inc. ) I1;,t ~~e~•II compared v~7kt: tl~e ori~zinal. 2300 Camino Ramon, Suite 100 ) SANTA CLARA C.t:ii:~.R`I~i' CL,CRK-RECORDER San Ramon, CA 94583 ) SPACE ABOVE FOR RECORDER'S USE ONLY PUBLIC PLAZA MAINTENANCE AGREEMENT THIS PUBLIC PLAZA MAINTENANCE AGREEMENT ("Agreement") is made and entered into this /Sday of April, 2002, by the Astoria Homeowners Association, a California nonprofit mutual benefit corporation (hereinafter referred to as the "Association"), and the City of Cupertino ("City"). RECI ~CALS: This Agreement is made and entered into with reference to the following facts: A. Association is the successor-in-interest to Taylor Woodrow Homes, Inc., a California corporation. ("Declarant"), the developer of the real property and improvements that comprise the Astoria project that is located within the City of Cupertino, County of Santa Clara, State of California ("Project"). B. As set forth herein, the provisions of this Agreement 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 the Association and City of'the Public Plaza and related improvements, including landscaping, that is situated on real property owned by City along Imperial Avenue 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 Lanci; Property 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 shall run with the land and shall be binding on all parties having or acquiring any right, title or i~iterest in the real property described in Exhibit "A" or any portion thereof and shall be for the benefit 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, 70070039/242022-2 -1- 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: The Association 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 Imperial Avenue, excepting therefrom the sidewalk abutting the property line of the Project which shall remain the maintenance responsibility of the City. Exhibit "B" shows the portion of the City's property for which the Association is responsible for maintenance hereunder. 3. Definitions of Repair, Replaceme~it and Maintenance: The repair, replacement and maintenance to be undertaken and performed under this Agreement shall include all work necessary to maintain the Public Plaza in a good, useable condition under all weather conditions. Said Public Plaza 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 by Declarant. 4. Decisions Regarding Performance of This Agreement: All decisions regarding the need for maintenance, the implementation thereof, and any particular other matters of the Public Plaza shall be determined by the Association. 5. Indemni :Association shall defend, indemnify, 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 re~isonable attorneys' fees, azbitration fees or costs and court costs, arising out of or related to the usE: and Association's maintenance of the Public Plaza described in pazagraph no. 2 and delineated on Exhibit "B," except to the extent that such claims, liabilities, actions, causes of action, and damages arise out of or relate to City's negligence and/or intentional conduct or the negligence or intentional acts of any of City's employees, agents, representatives, contractors, vendors, or consultants. 6. Arbitration: In the event that any dispute or controversy arises between the Association and City with respect to this Agreement, the same shall, at the election of any party, be submitted to arbitration to and in accordance vrith the rules of the American Arbitration Association and shall be conducted at its office n~~azest to the Project. The cost of the arbitration and reasonable travel cost shall be borne by the parties in such proportion as the arbitrator shall decide. 7. Attorney's 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 azbitrators' fees in addition to all other recoverable costs, expenses and damages. 70070039/242022-2 -2- 8. Further Documents: The parties covenant and agree that they shall execute such further documents and instructions as shall be ne~~essary to fully effectuate the terms and provisions of this Agreement. 9. Entire Agreement: This Agreement constitutes the entire agreement of the parties withrespect 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. 10. Severability: In the event any parr: 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 which can ~be sepazated from the invalid, unenforceable provisions shall, nevertheless, continue in full force and effect. 11. 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. 12. Recordation: It is anticipated that this Agreement shall be recorded as an Exhibit to the Association's Declaration of Covenants, Conditions and Restrictions, and shall be executed and acknowledged in proper recordable form. 13. Amendment: This Agreement mazy 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. Executed the day and yeaz first above written. ASTORIA HOMEOWNERS ASSOCIATION, a California nonprofit mutual benefit corporation By: Name~~ ~ ~ ~ Title: CITY OF CUPERTINO By: Name: ~. ~ n Title: y' APPROVED/AS TO FORM.I~ ~ Attest: X~ Date: f~~~` a~a City Attorney -3-~ CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ss. County of ~n 2..t ~ On J~,~r,¢, 4 aot~ before me, _~ur >j.,c~.r CJL lT'. ~~ LTA , Date Name and Trtle of Officer (e.g., "Jane Doe, Notary Public") personally appeared ~f't8Y1 ~ ~ ~Aff'1( , Name(s) of Sign r(s) personally known to me ^ proved to me on the basis of satisfactory evidence BNtBi~RA G. I10LTE ~- Commission # 1207204 = Notary PubAc - Califamia ~ Morin County My t..omm. Exphes Jon 8, 2003 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. WITNE my hand and official seal. Signature of Lary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent /raudulent removal and reattachment o/ this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: ^ Individual ^ Corporate Officer -Title(s): ^ Partner - ^ Limited ^ General ^ Attorney-in-Fact ^ Trustee ^ Guardian or Conservator ^ Other: Number of Pages: Signer Is Representing: Top of thumb here ® 1999 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.nationalnotary.org Prod. No. 5907 Reorder: Call Toll-Free 1-800-876-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ss. County of ~~~~~ C t~ On ~ ~ °~~~ before me, ~ D to .t, personally appeared GRACE E. JOHNSON Comrtassion # 1211312 = ~ Notary Publle - Calltomia ~ Z Santa Clam County My Comm. ~ Fab Z1, Z~ ~Ge ~• J~Itiv~a~, h.o Name and Title of Officer (e.g., "Jane D ,Notary C.tritJ ~~~~ l W `~ I [.~` Name(s) ~~personally known to me ~~ 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 c:apacity(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) ~~cted, executed the instrument. ~'VITNESS my hand and official seal. Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required bylaw, it raay prove valuable to persons relying on the document and could prevent fraudulent removal and re~lttachment of this form to another document. Description of Attached Document ' ~ Title or Type of Document: Document Date: ~ I (5 l d L- Number of Pages: Signer(s) Other Than Named Above: ~ 1~1 ~'l I Capacity(ies) CI 'me(d by Signe Signer's Name: - ~ ~' _ ^ Individual ~ Top of thumb here ^ Corporate Officer -Title(s): ^ Partner - ^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: Signer Is Representing: © 1997 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, C.A 91313-2402 Prod. No. 5907 Reorder: Call Toll-Free 1-800-876-6827 EXHIBIT "A" All that certain real property situated in the City o f Cupertino, County of Santa Clara, State of California, described as follows: All that portion of land described as Adjusted Parc;el One as shown in the Lot Line Adjustment, recorded September 11, 2001, Instrument Number 15862177, and as further described below. All that real property situated in the City of Cupertino, County of Santa Clara, State of California, being a portion of the lands described in that certain document recorded on October 14, 1975 in . Book B662 at Page 46, in the Office of the Recorder of Santa Clara County and being more particularly described as follows: Beginning at the most northerly corner of the lands described in said deed; thence along the easterly line of said lands South 19° 06' 48" East, a distance of 836.31 feet; thence leaving said line North 89° 56' 46" West, a distance of 403.79 feet to the westerly line of the lands described in said deed; thence along said line the following thrf;e courses; 1) North 00° 00' 13" West, a distance of 560.05 feet, 2) South 89° 56' 16" East, a distance ~of 130.03 feet, 3) South 00° 00' 43" East, a distance ~~f 229.92 feet to the Point of Beginning and containing an area of 4.15381 acres, more or less. 70070039/242022-2 -5•- LOT 31 3 .~ ~ o >' AREA TO BE -~ ~ w ~ MAINTAINED w ~ 0 8Y ASSOCIATION ~ } ~ U O n IMPERIAL AVENUE EXHIBIT B Subject ASTORIA -PUBLIC PLAZA ,® 540 Price Avenue MAINTENANCE AREA ~~ Redwood City, CA 94063 Job No . 20010273 ~^ 650/482-6300 650/482-6399 (FAX) By OJS Dote 04-08-02 Chkd. MA EN~INEERS~SURVtYOR3IPWIRERS SHEET 1 OF 1 :;~~ - ~; RESOLUTIOrI N0.02-091 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING EXECUTION OF PUBLIC .ACCESS MAINTENANCE AGREEMENT BETWEEN THE CITY AND ASTORI~~ HOMEOWNERS ASSOCIATION, A CALIFORNIA NONPROFIT MUTUAL BENEFIT CORPORATION, TRACT NO. 9410, LOCATED ON IMPERIAL AVENUE WHEREAS, there has been presented to the City Council a proposed Public Access Maintenance Agreement between the City of Cupertino and Astoria Homeowners Association, a California Nonprofit Mutual Benefit Corporation; to allocate the costs of maintenance, repair and replacement between the Association and City of the Public Plaza and related improvements, including landscaping, that is situated on real property owned by the City along Imperial Avenue in front of the Project as shown on Exhibit "A" and Exhibit "B"; and WHEREAS, said Public Access Mainten~ince Agreement establishes certain criteria and procedures for the accomplishment of said maintenance, repair, and replacement. NOW, THEREFORE, BE IT RESOLVF;D 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 20t" day of May, 2002, by the following vote: Vote Members of the C~ Council AYES: Lowenthal, Chang, James, Kwok, ;iandoval NOES: None ABSENT: None ABSTAIN: None ATTEST: APPROVED: \~ City Clerk Mayor, City of Cupertino