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CC Resolution No. 10-203 Stormwater Management Facilities Operation and Maintenance Agreemen, 790 South Blaney Avenue, APN 369-11-048 RESOLUTION NO. 10 -203 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING EXECUTION OF A STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTENANCE AGREEMENT, BLANEY VENTURE, LLC, A CALIFORN:[A LIMITED LIABILITY COMPANY, 790 SOUTH BLANEY AVENUE, APN 369 -11 -048 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, Blaney Venture, LLC, a California Limited Liability Company, 790 South Blaney Avenue, APN 369 -11 -048, as described in Exhibit "A ", 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 1st day of November, 2010, by the following vote: Vote Members of the City Council AYES: Wang, Wong, Chang, Mahoney, Santoro NOES: None ABSENT: None ABSTAIN: None ATTEST: APPROVED: • City Clerk M. or, City of Cupe no RECORDED AT THE REQUEST OF ) and ) WHEN RECORDED RETURN TO: ) ) ) ) ) ) SPACE ABOVE FOR RECORDER'S USE ONLY STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTENANCE AGREEMENT 790 South Blaney Avenue APN: 369 -11 -048 THIS STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTENANCE AGREEMENT ( "AGREEMENT ") is made and entered into this 22&'day of S(PE'►$Ef, 20 to , by Blaney Venture LLC, a California Limited Liability Company, (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 regulate and control the disposition of storm and surface waters as set forth in the CITY's Stormwater 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 improvements on the PROPERTY that may alter existing stormwater conditions on both the PROPERTY and adjacent lands. D. To minimize adverse impacts due to these 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. stormwater management facilities ( "FACILITIES "), more particularly described and shown in the Stormwater Management Plan prepared by Nordic FINAL -1- 11/25/03 Engineering, Inc. and dated , 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 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. 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" ( "PROPERTY ") 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 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 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 modif=ications 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. 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 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. 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 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. 7. 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 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 instrument of sale, transfer or other conveyance of fee simple title to the Property or any portion thereof (a "Transfer") to a third party (the "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 Transfer, but such release shall be expressly conditioned upon the Transferee assuming such 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 tha: 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. FINAL -3- 11/25/03 8. Property Transfer: Nothing herein shall be construed to prohibit a transfer by the COVENANTOR to subsequent owners and 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 covenam 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 under 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. 13. 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. 14. 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 the even 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. 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 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 in the Clerk's Office, at its /their expense. FINAL -4- 11/25/03 Executed the day and year first above written. (COVE • TOR � A INI �y 1� Nat- R L L. C By: /.i ft �1/' Name:.. / ud"' 4 (Notary acknowledgment to be attached) CITY OF CUPS; TINO By: Name: PA _ r�r� Title: /714.. .Cy o - Ap oved as to form: l I j r City Attorney FINAL -5- 11/25/03 , CALIFORNIA ALL - PURPOSE CERTIFICATE OF ACKNOWLEDGMENT . State of California County of l 5l��f,G���G ; rc....../ r j On i i S o Y i before me ' ./ ,..�,✓ & i J ✓ /I , � ) / v..7j i/� ,! - � ; � f / ' t /Mere i nsert name an t o t J personally appeare / � ' % j Li ,'7 C..-/y who proved to me on the basis of satisfactory evidence to be the person(s) whose names Is re subscribed to the within instrument and acknowledged to me th het he /they executed the same i his er /their authorized i capacity(ies), and that b his/�ter /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 the State of California that the foregoing paragraph • i is true and correct. - ALISON J. SCHARNOW • WITNESS my hand and official seal. , - ., Public Commission # 18733 a :- i Notary P - California D �' z % - Santa Clara County - ; .- t i /i A/ ) My Comm. Expires Dec 17, 2013 Signature of Notary Public r s (Notary Seel) ADDITIONAL OPTIONAL INFORMATION INSTRUCTIONS FOR COMPLETING THIS FORM i Any acknowledgment completed in California must contain verbiage exactly as I DESCRIPTION OF THE ATTACHED DOCUMENT appears above in the notary section or a separate acknowledgment form must be ,� properly completed and attached to that document. The only exception is if a 6,..i iii � l 1 ; � / ! (t t i A ( . G . , j.,C._ (1 ' i ' ; i I d ocument is to be recorded outside of California. In such instances, any alternative (Title or description of attached docum ) aclnowledgment verbiage as may be printed on such a document so long as the i r erbiage does not require the notary to do something that is illegal for a notary in California (i.e. certib'ing the authorized capacity of the signer). Please check the i I (Title or description of attached document continued) document carefully for proper notarial wording and attach this form if required • State and County information must be the State and County where the document i Number of Pages Document Date signer(s) personally appeared before the notary public for acknowledgment. • Date of notarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. (Additional information) • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). • Print the name(s) of document signer(s) who personally appear at the time of notarization. , CAPACITY CLAIMED BY THE SIGNER • Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. ❑ Individual (s) he /she /they, is /are) or circling the correct forms. Failure to correctly indicate this j. information may lead to rejection of document recording. , ( ❑ Corporate Officer • The notary seal impression must be clear and photographically reproducible. I f Impression must not cover text or lines. If seal impression smudges, re-seal if a j (Title) sufficient area permits, otherwise complete a different acknowledgment form. 1 i ❑ Partner(s) • Signature of the notary public must match the signature on file with the office of 1 { the county clerk. ❑ Attorney -in -Fact Additional information is not required but could help to ensure this ❑ Trustee(s) acknowledgment is not misused or attacbcd to a different document. 1' ❑ Other Indicate title or type of attached document, number of pages and date. • Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary). • Securely attach this document to the signed document 2008 Version CAPA v12.l 0-07 800- 873 -9865 www.NotaryClasscs.com CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 •per. c r crc rer., .,cam r.. rr„cr,G.r r.; r., — cr c=r r,.cr.,cscrr..ezr.,cr.Gr rc r.,er.,crcr„car',cr.,crcr,c rcr^,,cr.,c re�r.0r.,e... r.,c>: State of California g County of SANTA CCC._t9 A.A _ / . On Ncv. to , 2 before me, Kt /ZSTz=r -) R-ENEE -3f;tLARc I►9, Nc - PuSL , Date Here Insert Name and Title of the Officer ' personally appeared K+L1 w i N Name(s) of Signer(s) 9 , G who proved to me on the basis of satisfactory i evidence to be the person 'j whose names`) is / subscribed to the within instrument and acknowledged h to me that J /she /jy executed the same in •. I f /her/hr authorized capacityiieS, and that by I' 1;4.s/her/Ole signature ej on the instrument the persor, or the entity upon behalf of which the personFs'jacted, executed the instrument. h t i I certify under PENALTY OF PERJURY under the y '��' ' 4` KtRSTEN RENEE SOUARCIA - Commission # 1906898 laves of the State of California that the foregoing <: `, = paragraph true and correct. • _� -`_ Notary Public - California P ara ra 9 P t' `xYi% Santa Clara County v • My Comm. Expires Oct 4, 2014 W TNESS my hand and official seal. ; Signature: �-u I, Place Notary Seal Above Signature of Nota ublic H I' OPTIONAL tI Though the information below is not required by law, it may prove valuable to persons relying on the document ti t and could prevent fraudulent removal and reattachment of this form to another document. t Description of Attached Document t Title or Type of Document: S - 7 0 2 J w A - re- A An1A6 M F N T {, ULJ 7'7 I OPE/ "}+✓D 0 Mi47✓TeNRNG! q& E -1W7— S 9 Document Date: S F2 22 20! n Number of Pages: Signer(s) Other Than Named Above: 0 Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: V Corporate Officer — Title(s): ❑ Corporate Officer — Title(s): ❑ Individual RIGHT THUMBPRINT ❑ I ndividual RIGHT HUMBPRINT OF SIGNER �� ❑ Partner — ❑ Limited Li _ General Top of thumb here Partner — E Limited General Top of thumb here ❑ Attorney in Fact ❑ Attorney in Fact ❑ Trustee ❑ Trustee — 1-1 Guardian or Conservator El Guardian or Conservator 0 ❑ Other: LE Other: 0 Signer Is Representing: Signer Is Representing: ; 0 • - • `. = �i �.ti. \-, �. ..,..--• `� \_ ',. \_ \. `i'i �.�. \.,, , \. \_ \ -.• - \-\,-..,- • •.-- "e= ^ ` C - - . 1 ! ~: © 2010 National Notary Association • NationalNotary.org • 1- 800 -US NOTARY (1- 800 -E76 -6827) Item #5907 EXHIBIT "A" THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF CUPERTINO, COUNTY OF SANTA CLAM, _ STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: Beginning at the Westerly common corner of that certain 59.89 acre parcel of land described in the Deed from John P. Crossley, et ux, to El. Newton dated January 9, 1912 and Recorded January 9, 1912 in Book 38 of Deeds, Page 267, Santa Clara County Records and that certain 33.474 acre parcel of land described in the Deed from Edwin G. Hall, et ux, to Morgan E. Payne, dated May 2, 1893 and Recorded December 21, 1893 in Book 165 of deeds, at page 326, Santa Clara County Records, said point of beginning being in the center line of Blaney Road; thence along the dividing line between said 59.89 acre parcel and said 33.474 acre parcel South 58° 49' 37" East 317.57 feet; thence South 31° 10' 13" West 128.61 feet; thence on an arc of a curve to the left the tangent of which bears North 74° 20' 20" West with a radius of 209 feet through a central angle of 15° 53' 35" an arc distance of 57.97 feet thence South 89° 46' 05" West 146.61 feet to a pont on said center line of Blaney Roac!; thence along said center line North 0° 13' 55" West 267.25 feet to the point of beginning. APN: 369-11 -048 it