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09-122 Stelling Palms Stormwater Mgmt. Facilities & Maint AgreementRECORDING REQUESTED BY City of Cupertino WHEN RECORDED MAIL TO City Clerk's Office City of Cupertino 10300 Torre Avenue Cupertino, CA 95014-3255 ~ii~imi~N~~~ii~~~~i~i~iu~~i~ Pages ll Fees.... No Fees Taxes... Copies.. AMT PA[D REGINA ALCOMENDRAS SANTA CLARA COUNTY RECORDER Recorded at the request of City RDE # 011 8/03/2009 2 02 PM (SPACE ABOVE THIS LINE FOR RECORDER'S USE) NO FEE /N ACCORDANCE WITH GOV. CODE 6103 air STORMWATER MANAIsEMENT FACILITIES OPERATION AND MAINTENANCE AGREEMENT Stelling Palms of Cupertino 10855 N. Stelling Road Tract No. 9983 Original O For Fast Endorsement 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 MAINTENANCE 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 J ~ ~ , 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 as the "CITY"). RECITALS: This AGREEMENT is made and entered into witYi 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 Storrnwater Pollution Prevention and Watercourse Protection Ordinance, effective October 15, 2003 {the "ORDINANCE"). B. The COVENANTOR is the owner of a cf;rtain 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 the PROPERTY and adjacent lands. D. The CITY has reviewed and approved thc; 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 thc;se 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, storm~vater management facilities ("FACILITIES"), more 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 Cupertin~~ and are hereby incorporated by reference. 2. Covenants Running with the Land; 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 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 be~iefit 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 shawl 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. 3. Responsibility for Installation, Operation 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 by the CITY or the ORDINANCE. 4. Facility Modifications: At their sole expense, the COVENANTOR, its successors and assigns, shall make such changes or modificationc> 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 re~~sonable 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 an~i 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 Facility F;epairs 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 Facility 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 p~.~rsue other such remedies as provided 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. 7. 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 d~image, including without limitation reasonable attorneys' fees, arbitration fees or costs and ~~ourt costs, arising out of or related to the COVENANTOR's, 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. 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 z.ny 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 instrument of sale, transfer or other conveyance of fee simple title to the PROPERTY or any portion thereof (a "Transfer") to a third party (tl:.e "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 obligations and responsibilities are applicable to that portion of the PROPERTY included in such 'Cransfer, but such release shall be expressly conditioned upon the Transferee assuming suc)'~ 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 three sentences shall be applicable to the original COVENANTOR and any successor Transferee 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 recoverable costs, expenses and damages. Page 3 of 5 11. 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. 12. 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 expressed herein. 13. Severability: In the event any part or provision of this AGREEMENT shall be determined to be invalid or unenforceable un~jer the laws of the State of California, the remaining portions of this AGREEMENT that 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 coven,~nt contained herein. 15. Amendment: This AGREEMENT may be amended in whole or in part only by mutual written agreement. Any such amendment shall lie 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 execute 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 ~_ By: .~ Linda Esp' za, Vit e- esident CITY OF CUPERTINO: By: G' Name: ~~ r ~ ~ ,,ham ~c-,/ < < Title: , ~~,i ~r-- Attach Notary acknowledgement Page 5 of 5 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA ) COUNTY OF SANTA CLARA ) On May 5, 2009 before me, S. Howard, ~. 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 instrument and acknowledged to me that they executed the same in their autho:-ized capacities, and that by their signatures on the instrument the persons, or the entity u~~on 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 S. HOWARD Commission #~ 1831595 Notary Public -California i Santa Clara County M Comm. Ex Tres Jan 17, 2013 THE WITHIN CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT L)ESCRIBED 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 an~i reattachment of this form to another document. Description of Attached Documents: Title or Type of Document: Stormwater 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 by si ners: Signer's Name: Keith Kolker Capacity Claimed: Vice-President Signer is representing: Stelling Palms of Cupertino, LLC Signer's Name: Linda Espinoza Capacity Claimed: Vice-President Signer is representing: Stelling Palms of Cupertino, LLC the foregoing paragraph is true and correct. WITNESS my hand and official seal. Exhibit `A' Legal Description ~~f "PROPERTY" All that certain real property situated in the Cit}~ of Cupertino, County of Santa Clara, State of California, described as follows: Lots 1 through 21 of the Amended Map of Tract No. 9983, as said map was filed for record in the Office of the Recorder of the County of Sant~i Clara, as File No. 19991681 on September 17, 2008, in Book 827 of Maps at Pages 21-26, County of Santa Clara. Said described area contains 1.105 acres, more or less. LAND ~/~ ~ ~ ~ ~ Y 1 9 ~ Expires: 12/31/10 s`>~TF Ofi CAL~F~~~\P 07/08/08 Prepared By: JMH Weiss, Inc. F:Vobs\4583-Las Palmas-CupeRino\MapsWgreements\4583-Stormwater O&M Legal-070808.doc CALIFORNIA ALL-PURPOSE ACKNOINLEDGMENT r State of California County of v ,~ , y ~ On ~'~ (`~' ~ ~~ before me, t~-~Ll dk IL ~J~1 S ~ (~ ~}~~ ~'11~~f ~ , Date Here Insert Name'and Title of the Officer personally appeared ~ ~~~- L~~ ~.:~- - Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be ti'le person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/site/they executed the same in his/her/their authorized ~ capacity(ies), and that by his/her/their signature(s) on the ~+~+. JULtA KINST instrument the person(s), or the entity upon behalf of ComnMiabn # te33129 which the person(s) acted, executed the instrument. ~f- Pubtk - Ca1NorMa S~ Clue ColwMt ~ ~~ 2013 ~ I certify under PENALTY OF PERJURY under the laws ' ' of tht~ State of California that the foregoing paragraph is true and correct. WITPJESS my hand and official seal. Signature ~!`-'~'a" ~L~"`~~ Place Notary Seal Above Signature of Notary Public OPT/ON~1 L Though the information below is not required by law, it may pfove 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 N~l~~r ~ ~-~-c-~.~-'fz.Q/~ (g~(yQ~~, (~1.Ui11 ~ (~((~.'~~ n p~.v~C~ Document Date: ~ ~ ~'"~~~ Number of Pages: ~~ 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 ~~igner's Name: [^ Individual CJ Corporate Officer -Title(s): ^ Partner - ^ Limited ^ Gen [^ Attorney in Fact i ^ Trustee ^ Guardian or Con ^ Other: ~~igner Is Re Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., PO. Box 2402 • Chatsworth, CA 91;113-2402 • www.NationalNotaryorg Item #5907 Reorder: Call Toll-Free 1-800-876-6627 RESOLUTION 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, STELL,ING 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 C~ilifornia Limited Liability Company, 10855 N. Stelling Road, Amended Map of Tract No. 998?, and said agreement having been approved by the City Attorney; NOW, THEREFORE, BE IT RESOLVED 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 regula~• meeting of the City Council of the City of Cupertino this 7`" day of July 2009, by the following vote: Vote Members of the C~ Council AYES: Mahoney, Sandoval, Santoro, Wang, Wong NOES : None ABSENT: None ABSTAIN: None ATTEST: APPROVED: . / G City Clerk Mayor, City of «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 agreement with Stelling Palms of Cupertino and the City of Cupertino, a governmental agency, i:~ hereby accepted by the City of Cupertino on July 7`h, 2009, and the grantee consents to recordation thereof by its duly authorized officer. Dated: July 15, 2009 V~'~ d l+- By: -- Julia Kinst Senior Office Specialist