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CC Resolution No. 09-167 Maint Agreement, 20920 McClellan RdRESOLUTIOr~ N0.09-167 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING EXECUTION OF A STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTE]vANCE AGREEMENT, ST. JUDE THE APOSTLE EPISCOPAL CHURCH, 20920 :~ICCLELLAN ROAD, APN 359-20-028 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, St. Jude the Apostle Episcopal Church, 20920 McClellan Road, APN 359-20-028, as described in Exhibits "A" and "B", 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 20~" day of October, 2009, by the following vote: Vote AYES: NOES: ABSENT: ABSTAIN: ATTEST: Members of the ~: Council Mahoney, Sandoval. Santoro, Wang, Wong None None None City Clerk APPROVED: ~> `, j / ~~ ayor, City of C rtino RECORDED AT THE REQUEST OF and AND WHEN RECORDED RETURN TO SPACE ABOVE FOR RECORDER'S USE ONLY STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINI-ENANCE AGREEMENT County Assessor's Parcel #359-20-028 THIS STORMWATER MANAGEMEI~IT FACILITIES OPERATION AND MAINTENANCE AGREEMENT ("Agreement") is made and entered into on ~//~~ day of ~ie~ , 20Q9 by St. Jude the Apostle Episcopal Church in Cupertino, California, (hereinafter jointly referred to as "COVENANTOR") and the City of Cupertino ("CITY"). RECITALS: facts: This Agreement is made and entE~red into with reference to the following 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 Storm Water Pollution Prevention and Watercourse Protection Ordinance, effective October 15, 2003 (the "Ordinance"). B. The COVENANTOR is the owner of a certain tract or parcel of land more particularly described in Exhibit `A' attached hereto (the "Property"). C. The COVENANTOR desires to construct certain Parking Lot Improvements on the Property that may alter existing storm water conditions on both the Property and adjacent lands. D. To minimize adverse impacts due to tl~e Parking Lot Improvement changes in existing storm and surface water flow conditions, COVENANTOR is required by CITY to build and maintain, at COVEN~~NTOR'S expense, certain storm water management facilities (the "Facilities"). 1 E. The Facilities are more particularly described and shown in the Storm Water Management Plan prepared by Missions Engineers, Inc. and dated August 24, 2009, 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. F. The Facilities are located in a rectangular 24' x 28' storm drain infiltrator area near the SW corner of the Property, as described in Exhibit "B" hereto (hereinafter called the "Easement"). G. The CITY has reviewed and approved the Parking Lot Improvement Plan and the Storm Water Management Plan subject to the parties' execution of this Agreement. NOW, THEREFORE, in consideration of the benefit received and to be received by the COVENANTOR, as a result of the CITY'S approval of the Parking Lot Improvement Plan and the Storm Water Management Plan, the COVENANTOR, hereby covenants and agrees with the CITY as follows: 1. Covenants Running With The t_and: 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 said parcels or any portion of said property and shall inure to the benefit of and be binding upon ea~:h 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 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 and Maintenance: At its sole expense, the COVENANTOR, its suc~~essors and assigns, shall construct, operate, maintain and repair the Facilities in accordance with the Storm Water Management Plan and any applicable lavr or regulation. 3. Responsibility For Facilities h~odifications: At its sole expense, the COVENANTOR, its successors and as~;igns, shall make such modifications to the Facilities as may be determined as reasonably necessary by the CITY to ensure that the Facilities are properly rnaintained and continue to operate as originally designed and approved. Any modifications to the Facilities, other than operation, maintenance and repair, n-iay be made only with prior written authorization by the CITY. 4. Facility Inspections by the CITY: On 72 hours prior written notice to COVENANTOR, during daylight time Mondays through Fridays, and in a 2 reasonable manner as provided in thE; Ordinance and in the Storm Water Facilities Easement Agreement, the CITY, its agents, employees, contractors representatives, vendors, and consultants, 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 complian~:e with the Storm Water Management Plan. The CITY reserves the rights i:o access at any time for emergency response. 5. Failure to Perform Required F~~cility 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 Storm Water Management Plan and any applicable law or regulation within the following time limits specified in a written notice from the CITY, namely within 90 days for any defects costing under $10,000 to repair, within 180 days for any defects costing over $10,000 but under $;25,000 to repair, within 270 days for any defects costing over $25,000 but under $0,000 to repair, and within 360 days for any defects costing over $50,000 to repair, then the CITY shall have the right, to enter the Easement to perform remedies) 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 remedies set for in Sections ~~.18.190, 9.18.230, and 9.18.250 of the Ordinance. 6. Indemni The COVENANTOR its successors and/or assigns shall defend, indemnify, and hold harmless the CITY from any and all claims, liabilities, actions, causes of action, and damages for personal injury and property damage to CITY real property and/or its employees, including without limitation reasonable attorneys' fees, arbitration feE~s or costs and court costs arising out of or related to the COVENANTORS, its successors' and/or assigns' negligence or intentional misconduct in the construction, operation, maintenance and repair of the Facilities in the Easement, except to the extent that such claims, liabilities, actions, causes of action, and damages ;rise out of or are related to the CITY'S negligence and/or intentional misconduct or the negligence or intentional acts of any of the CITY'S officials, officers, employees, agents, representatives, contractors, vendors, or consultants. 7. COVENANTOR Obligations and Responsibilities: Initially, the COVENANTOR shall be 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 the Agreement to the contr<<ry, upon recordation of a deed or other instrument of sale, transfer or other conveyance of fee simple title to the real property described in Exhibit `A' or any portion thereof (a "Transfer") to a third 3 party (the "Transferee"), the COVENS-NTOR shall be released of all of its obligations and responsibilities under this Agreement accruing to the dated of such Transfer to the extent such obligations and responsibilities are applicable to that portion of the real property describe~~ in Exhibit `B' included in such Transfer, but such release shall be expressly conditioned upon the Transferee assuming such obligations and responsibilities key 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 provision. of the preceding three sentences shall be applicable to the original COVENAN-~~OR and any successor Transferee who has assumed the obligations and responsibilities of the COVENANTOR under this Agreement as provided above. 8. Termination of Easement and agreement: If the CITY determines in its reasonable discretion at some time in the future that the storm water management facility is no longer rE~quired, then at the request of the COVENANTOR, its successors and/or assigns, the CITY shall execute a Quitclaim Deed to the Easement and a Release of this Agreement, that the COVENANTOR, its successors and/or a;~signs, shall record with the Santa Clara County Recorder's Office, at its/their expense. 9. 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 or injunctive relief for any alleged breach hereof, the prevailing party in such action or arbitration shall be entitled to reasonable attorneys' fees or arbitrators' fees in addition to all other recoverable costs, expenses and damages. 10. Entire Agreement: This Agreement, the parties' Storm Water Management Facilities Easement Agreement, COVENANTOR'S Parking Lot Improvement Plan, COVENANTOR'S Storm Water Management Plan, CITY'S Parking Lot Improvement Plan Approval and CITY'S Storm Water Management Plan Approval constitute the entire writte~~ agreements of the parties with respect to the subject matter contained herein and supersede all prior agreements, whether written or oral. There are no representations, agreements, arrangements, or undertakings, oral or written that are not fully expressed therein. Amendments to one or more of the plans and those amendments could be added and such amendment would be: binding. 11. Amendment of Agreement: 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 even any conflict arises between the provisions of any such amendment and any of the provisions of any earlier document or documents, the mo;~t recently duly executed and recorded amendment shall be controlling. 4 12. Agreement Severable: In the event any part or provision of this Agreement shall be determined to be irn~alid or unenforceable under the laws of the State of California, the remaining F~ortions of this Agreement that can be separated from the invalid or unenforceable provisions shall, nevertheless, continue in full force and effect. 13. No Waiver: The waiver of any covenant contained herein shall not be deemed to be a continuing waiver of thie same or any other covenant contain herein. COVENANTOR: St. Jude the Apostle Episcopal Church in Cupertino, California ,~ ~,V, Past Karen Si friedt s'President ~i3T-2tC/J~- l,. CDL£~Its Stz-~~-~y CITY: City of ertin ; a Mu icipal Corporation Approved as to form: B ~ 1~ 2~~0< y~ Its: p.tles-E- By: ~N to~a7 ,~ Its: 1e~k 5 STATE OF CALIFORNIA COUNTY OF SAN A CLARA On / before me, ~r~~ f~ ~, Notary Public, personally appeared Karen Siegfriedt, who proved to me on the basis satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity, and that by her signature on the instrument the person, or entity upon behalf of which the person acted, executed 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. CNHy L CF1ANp~~ C~+mlwon # 1619814 Signature ~• < _Seal) ~ ~ ~, p~ - CoNforrwa Santa Clio County STATE OF CALIFO NIA S'MCanrt4E~NratNovll, COUNTY OF SANTA CLARA On ~, before me, ~ o ~,,/~y~~~lotary Public, personally appeared ?~g.k n~is-P C'~ ~~Nho proved to me on t asis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity, and that by her signature on the instrument the person, or entity upon behalf of which the person acted, executed the instrument. certify under PENALTY OF PERJURY under the laws of the State of Califomia that the foregoing paragraph is true and correct. • WITNESS my hand and official seal. CA1HY L. C1iA1~tER _ Canrrllnbn # 1619e 14 Signature ~` ~~, ~ ~ \ - Notary PubNc - CdHgNo Sanla Clara County STATE OF CALIFOR IA MyCo~r.ExpYreNovil, COUNTY OF SANTA CLARA On before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or entity upon behalf of which the person acted, executed 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. Signature (Seal) STATE OF CALIFORNIA COUNTY OF SANTA CLARA On before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or entity upon behalf of which the person acted, executed the instrum~snt. 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. Signature (Seal) 6 August 24, 2009 Job No. 09002 LEGAL DESCRIPTION A PORTION OF SECTION 24, T. 7 5., R 2 W., M.D.B.&M. APN: 359-20-28 CITY OF CiUPERTINO THE LAND REFERRED HEREIN BELOW IS SITUATED 1N THE CITY OF CUPERTINO, COUNTY OF SANTA CLAF:A, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: Beginning in the Southerly line of the parcel described in the deed to the Protestant Episcopal Bishop of California by deed recorded September 19, 1961, Book 5301 Official Records, Page 170, at the intersection thereof with the Easterly line of the parcel described in the instrument of dedication to the City of Cupertino, recorded July 10, 1964, Book 6577 Official Records, Page 252:. Thence North along said Easterly line 360.02 feet; Thence along a tangent curve to the right with a radius of 30 feet, through an angle of 89°58'02", an arc distance of 47.11 feet to a Southerly line of said last mentioned parcel; Thence N. 89°58'02" E., along said Southerly line 305.59 feet to the West line of the parcel conveyed to Cupertino Church ~f the Nazarene, Cupertino, California, by deed recorded June 2, 1965, Book 697! Official Records, Page 80; Thence S. 0°0'08'' E., along said West line 389.76 feet to the Southerly line of the parcel first above referred to; Thence S. 89°55'32" W., along said line 335.59 feet to the Point of Beginning. EXHIBIT "A" Page 1 of 1 September 3, 2009 MEI#09002 ST DUDE APOSTLE EPISCOPAL CHURCH APN: 359-20-028 l STORMWATER MANAGEMENT FACILITY EASEMENT to CITY OF CUPERTINO, CA LEGAL D1N;SCRIPTION STORM DRAIN I)\~FILTRATOR AREA (See Mission Engineer'., Inc. Dwg. No. 5-14262) A Storm Drain Inftltrator Area within that a~rtain portion of real property located in the City of Cupertino, County of Santa Clara, S _ate of California described as follows: A portion of the lands described in the Deed of Trust filed on July 14, 1967 in Book 7784 at Page 567 Santa Clara County Official Records, said portion being more particularly described as follows: C f Commencing at a pbint~ying on the Easterl~~ boundary line of South Stelling Road at the Southwesterly corner of said lands; Thence, from said Point of Beginning along the Southerly boundary line of said (ands North 89° 55' 32" East, 76.93 feet; Thence, leaving said Southerly boundary ling at a right angle North 00° 04' 28" West, 16.00 feet to the True Point of Beginning; Thence continuing, North 00° 04' 28" West, 28.00 feet; Thence, at a right angle North 89° 55' 32" East, 24.00 feet; Thence, at a right angle South 00° 04' 28" E<<st, 28.00 feet to a line drawn parallel to and distant 16.00 feet from said Southerly boundary line; Thence, along said line drawn parallel South 89° 55' 32" West, 24.00 feet to the True Point of Beginning and containing 672 square feet, more or less. EXHIBIT "B" Page l of 2 10/08!2009 16:07 14082551860 S S RUDD PAGE 02/03 F ~ -- `` i ~ ~ ~ ~ d c- a- ~+ ~ rtDi ~....~.. ~ ..... _ IV 89~~32' E 1~rv' 0.2E1~ _ _ _ _ _ _ 'a~ 1.~ l~ U oa I 27.03 /~• ~ ~, ~ w ~ ~ ~ I f ~' ~ ~ a~ ~ ! r ° ~ ~ ~ ~ /~39'i7'00' W ~ L ~ `"~ I I 14.x.5' ~ ~, I t ~ ~ _ ,'I { I ~ ~ ! 4~goEES Srop~ ( ! ~ 44, 4~4P F ,~~ E~, -5'~-------~--+~~ f 4,1 ~ Na. 215QQ rte., ~ ~ a~ A~~F 1 ~ i ~, c ~I `~ i ~ ! I ~ ( 1~ PACIFIC BELL ( ~ 1~ 89'35'3' f~ ~' I-.~2o.ao-~~ ~AS~nnr;N I L ~/"""'1~.4~' ! INS-r~uM~1v I NQ 1 ~9~641 ~ "'!. I ~ N 89.5.5'32" ~ ~j ! lod STARA~i,ril ~ ~ ! I cwvlIN DRAIN ~I le F'AC:IFIC BELL ~ ~ Tf'tU~ POINT OF ~IN~ILTIRATaRI I$ NSTRUt~1N N T ~ $!=~aiNh11NG -r-r~ o AREA -f - NC). 1.3~1.3ti411 I ~ -----._.. "I"nk 89'55'3 ----~~~ ""~ ~ N 89'S5'3~~E ~6.8~T _ __-'_ ----- .... _ _ ,L~.oo_ _ i ___I.__ _l I _ _ ~~ 3 W 133.18' ~ S 139.55' la ~ 335.5'9 FT POINT ~ ~7H wE57 '~~ f~GdcE EASENlI;N C0111r1ETIC©JENT I 7784 O.R. I~7 Elk fi371 Pc 9s ~'~ I APN .s59-20-~27 t ~~-~ ~' c a SILVESTER AUSTIN R ~ ~ s ~ Sc SAPii'St~A 1 ~~ ~~ T RM UVATER M A~~ AHEM ~ T EACI ~I T . - j EA~EME.NT ~ '~ `~ SCALE: i"=30' IN T1`~E CITY OF GUPf=f~"t1N0, C LIFOf~NIA ` __.. EXHt~1"P "B" .,,,. ~ rq~c ~ ar z ~~~~~I~JU\J ~~~~~ ~~ ~ - eKC M~ ~~ 1 ~ l~1 n ~ 355 Reed St. 5onto Clarfl, RE"SP4NS1Vrr: R£U~E k~,}Ud Calif 9SD50 (408) 727-8282 FA~ l~' ~ING~ 7yb,3 : (408 727-8285 J09 ND. 090Q2 DWG, N0.5--14262