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CC Resolution No. 09-150 Maint Agreement, Alten & MatsumotoRESOLUTIOr~ N0. 09-150 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING EXECUTION OF A MAIr1TENANCE AGREEMENT, BRETT G. ALTEN AND TOMOKO MATSUMOTO, 22661 SAN JUAN ROAD, APN 342-17-109 WHEREAS, there has been presented t~~ the City Council a proposed maintenance agreement between the City of Cupertino and Brett G. Alten and Tomoko Matsumoto, 22661 San Juan Road, APN 342-17-109 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 regular meeting of the City Council of the City of Cupertino this 15th day of September, 2009, by the following vote: Vote AYES: NOES: ABSENT: ABSTAIN: ATTEST: Members of the Cites Council Mahoney, Sandov~~l, Santoro, Wong None Wang None City Clerk APPROV D: ayor, City of Cu rtino 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 ~' day of 20 G q , by Brett G. Alten and Tomoko Matsumoto (hereinafter referred to as Declarant), and the City of Cupertino ("City"). RECITALS: This Agreement is made and entered into with reference to the following facts: A. Declarant, the developer of the real property and improvements that comprise the 22661 San Juan Road 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 Declarant and City of the certain improvements, including Retaining Wall, that is situated on real property owned by City along San Juan 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 a,;ree as follows: 1. Covenants Running_With the Land; ProQ;rty 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 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 ov~mers 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: 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 San Juan road, ("the frontage Area of Project"). :Exhibit "B" shows the portion of the City's property for which Declarant is responsible for m aintenance hereunder. 3. Definitions of Repair, Replacement and Pvlaintenance: 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, useat~le 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 by Declarant. 4. Decisions Re ag rding Performance of this Agreement: All decisions regarding the need for maintenance, the implementation thereof, and any particular other matters of the Project shall be determined by The Department of Public Works of the City. 5. Indemnity: Declarant 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 reasonable ;attorney's fees, arbitration fees or costs and court costs, arising out of or related to the use and maintenance by Declarant of the Frontage Area Project described in paragraph number two 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 employees, agents, representatives, contractors, vendors or consultants. 6. 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 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 State of California, the remaining portions of this Agreement which can be separated from the invalid, 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 A€;reement shall be recorded and shall be executed and acknowledged in proper recordable form. 13. 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 2 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 wr::tten. By: Name: P(1 Title: c~i.,~ :1 Q ~ CITY OF CUPERTINO By: _ Name: Title: ~o -'~nko .lea--t-S~ wt~v t?~V ~ ~ f EXH~B[T A LEGAL D~SC,RIPTI4N Real property 1n the Cray of CuPer~no, Comity oT' Santa Clara, State of CaTTfor~ta, described as fotloH-s: ALL OF SECTIONS 158 AND 174, AND A PORTION OF SECTIOT"TS 159 AND 173, AS SHOWN ON THAT CERTAIN MAP ENTITLEb, "MAP OF INSPIRATION HEIGHTS, MONTH VISTA", RECORDED ON APRIL 11, 1917 iN BOOK "P" OF MAPS AT 1~AGE 13, SANTA CLARA COUNTY RECORT~, AND LYING WITHIN THE CITY OF CUPERTINO, COIETVTY OF SANTA CLARA, STATE OF CALifORNIA, AND MORE PARTICULARLY DESCRIBED AS FOilOYrS: BEGINNING AT THE SOUTHERNMOST CORNER OF SAID SECTION 174, SAID CORNER BEING A POINT ON THE CENTERLINE OF SAN JUAN ROi~D AS SAID CENTERLINE LS SHOWN ON SAID MAP OF "INSPIRATION HEIGHTS"; THENCE ALOT+iG THE SOUT1iEA5TERLY LINE OF SAID SECTION 174 NORTH 44° 59' 10" EAST 164.48 FEET TO THE MOST EA~fERLY CORNER THEREOF, SAID CORNER ALSO BEING A POiiY7' IN THE SOUTHWESTERLY LINE OF SAID SECTION 158; THENCE ALONG SAID SOUTHWESTERLY LINE OF SECTION i5B SOUTH 46° 24' 41" EAST 24.74 FEET TO THE MOST SOUTHERLY CORNER THEREOF; 3'HENCE NORTTi 45° 34' 09° EAST 10$.SS FEET TO THE MOST EASTERLY CORNER THEREOF; THENCE ALONG THE NORTHEASTERLY LINE OF SAID SECTIONS 15€3 AND i59 NORTH 45° 03' 06" WEST 125.7E FEET TO THE EASTERLY CORNER OF PARCEL "B" AS SHOWN ON THAT CERTAIN PARCEL MAP RECORDED iN BOOK 364 flF MAPS AT PAGE SET, SANTA CLARA COUI+CT"Y RECORDS; THENCE ALONG THE SOUTHEASTERLY LINE OF SAID PI~RCEL "B" SOUTH 4.~i° 02' S4" WEST 275.76 FEET; THENCE SOUTH 28° 33' S2" EAST 41.27 FE~T'~0 A POINT ON SAID CENTERLINE OF SAN )DAN ROAD; THENCE ALONG SAID CENTERLINE SOITTH 65° 33` 5Z" EAST x1.54 FTC T' TO AN ANGLE POINT IN SAID CENTERLINE; THENCE CONTINUING ALONG SAID CENTERLINE SOUTi~ 43° 15' 04" EAST" 21.77 TO THE POINT OF f3EGI#NING; AND AS DESCRIBED IN THAT CERTAIN LOT LIFE ADJUSTM;~NT RECORDED SEP`T'EMBER 11, 2408 AS DOLUMENT NO. 19986528, OFFICIAL RECORDS. ,. APN: 342-17-486-00 AND 342-17-087-40 ~,~~c ~, s r~ w~ pp Rs. o s, ' ?~ '~~~ ~ .,~ SCALE: 1" = 40' d~~~~a ~~~ ~h ti _ ~~c. ~o°' , ~~ h ~~~. ~~ . `rsr ,~..~ ~_ ~.~7 ~y~'~2:'~'~Y ~vt: ~i ~'~ R ~Q~ tS~L~ 4 d"" ~'~ ~, ~,'~~ yy 1 ~,t + ~ ,.,. ~~r. a ~ +`c. ~~ r~ ~.° ` ~ cEVt~. ~~ ~ s9ti ~~' ~; S ~ PLAT TO ACCOMPANY EXHIBIT A ~~ ss;~ 9 FOR THE PURPOSES OF DEDICATING 2~ 41. ~S2F ~ S43'15'o0"E PLAT TO ACCOMPANY EXHIBIT A '9p ~~•~~ 22661 SAN JUAN ROAD, CUPEERTINO, GA APN: 342-17-086 AND --087 Job No. 1782 September 3, 2009 F.uhit-it B SAN JUAN ROACI DEDICATION 22661 San Juan F:oad, Cupertino Being a portion of that certain parcel sho~n~n on that Record of Survey recorded in Book 828 of Maps at page 10, Santa Clara County Records, and lying within the City of Cupertino, County of Santa Clara, State of C,slifornia, and more particularly described as follows: Beginning at the most southerly corner of said panel, said corner being a point on the centerline of San Juan Road, as shown on said Record of Survey; thence along said centerline North 43°15'00" West 21.77 feet to an angle point in said centerline; thence North 65°33'52" West 41.54 feet; thence North 28°33'52" West 33.23 feet; thence along a line parallel with said centerline of San Juan Road and 20.00 feet northeasterly, measured at right angles, South 65°33'52" East 72.02 feet; thence South 43"15'00" East 25.10 feet to a point on the southeasterly line of said surveyed parcel; thencE: along said southeasterly line South 44°59'10" West 20.01 feet to the point of beginning. Containing 1,604 square feet, more or less (0.037 acres, more or less). These descriptions were prepared by me or under my direction in conformance with the Land Surveyor's Act. Charles W. Davidson Co. 2~~.. 4 -oY_o 9 Terry L. Rucker, R.C.E. 23191 Date License Exp. 12-31-09 (~o.231pI FXp. fz•~1-o9 ,., File: 1782 DESC-ROAD DEDICATION BASIS OF BEARINGS: THE BEARING (544'59'10"W) OF THE NORTHWESTERLY LINE OF PARCEL BAS SAID PARCEL IS SHOWN ON THAT CERTAIN i PARCEL MAP RECORDED IN BOOK 235 OF ,~ MAPS AT PAGE 40, SANTA CLARA COUNTY i RECORDS, AS FOUND MONUMENTED, WAS ~ ,~ USED AS THE BASIS OF BEARINGS SHOWN ON THIS PLAT. SA/i~ JS y 9 / ~~ i /may ~ ~ \ P~~~~ ~o/~~h ~S1 ~ \ \ \ Q 'y ~~^co/. i i ~ ~ ~ hk ~ . i i i~ ~~~~ti \~~~\ / ~j ~ o ~ ~~ ~ ~~ ~ ~ ~ ~T~ S A6,, b ti / ~ 2A• ~ ~ ~ Sl ~sr) ~~` ~ R• i~ / AREA OF STREET ~` i~ ~ / DEDICATION ~~ / i 1,604 tS.F. ~ \ ~~ (0.037 fAC.) ~i \o c'~~ ~~3;S~,E X20 , ry° /~~~ /~ POINT OF BEGINNING _o~ QPe- ti~ J~Y~ ~. Q' /~/ s \ \ ~ o `~G ~ °~ 9~' ~ o ~ 9~) ~ ,yo ~ ~ ,yc~ FXill~llt $~ PLAT FO R ROAD DEDICATION 22661 SAN JUAN ROAD CUPERTINO, CALIFORNIA DATE: 9-03-09 SCALE: 1 °=5D' DRAWN BY: T.L.R. CHECKED EY: JOB NO.: 1782 ti \~s~~ ~ ~6 •. ~~ >> .O \ v~' ~\~ t3 / goo. ~o~~ ~~~~ ~~,~/QRpFESSI~~ /,~~SO ~~ ` R Uc~ F ~~ , No, 23191 ~fi\ Exp. 12-31-09 ~9~. CIV1~ ~~P \ OF CA~-~F q~bY-o9 ~urir~ea ~' ~aiuic~aoov ~'a. A CALIFORNIA CORPORATION CONSULTING CIVIL ENGINEERS 255 W. JULIAN ST. #200, 5AN JOSE, CA. PH. 08) 2 5-9162 __ ___ CE N0. 23191 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of ~ ~xi1-~Va~-~ On ~--~-~ ~ ~ ~G before me, J l-t-i-t dk ~~nl S( F p~J 0 71~t'L ~ ~ Lt~/~(C~ Date 1~ Here Insert Name and Title of the Officer personally appeared ~~ ~ G'1• ,~ ~~-1r`- Gw-~ ~~~~ 1~`~Q-. ~..~; ~7j Name(s) of Signer(s) JULIA KiNST Comma:aion # 1833129 i Notary Pubiie -California Sank Clara County Comm. Explrea Jan 25, 2013 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be tl~e 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 cap~icity(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 ti-e State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature~/~-~- ~"" ` Signature of Notary Public OPTION,4 L Though the information below is not required by law, it may Frove valuable to persons relying on the document and cou/d prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Docu~m`ent,:, ~V~^a~~`(~-~C~.., ~ 1 r~'~J-t ~ • ~'~y~- (~-"~ Document Date: - _ ~~ ~ ~l~ ~ J Number of Pages: ~ ~~~~"~ Signer(s) Other Than Named Above: ~ 1 ~~ 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 Representi Signer's Name: ^ Individual ^ Corporate Officer -Title(s): ^ Partner - ^ Limited ^ General [-~ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: Signer Is Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 9' 313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1-800-876-6827