CC Resolution No. 06-195
RESOLUTION NO. 06-195
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
AUTHORIZING EXECUTION OF A MAINTENANCE AGREEMENT WITH
PAUL E. WEISS AND BARBARA H. WEISS, AS TRUSTEES OF THE WEISS F AMIL Y
TRUST, DATED DECEMBER 13, 1982, MARK BENNETT WEISS, LINDA WEISS
LIPINSKI, AND RICHARD ALAN WEISS, 20955 STEVENS CREEK BOULEVARD #A
(WHOLE FOODS MARKET), APN 316-31-018 AND 316-31-020
WHEREAS, there has been presented to the City Council a proposed maintenance
agreement between the City of Cupertino and owner, Paul E. Weiss and Barbara H. Weiss, as
Trustees of the Weiss Family Trust, dated December 13, 1982, Mark Bennett Weiss, Linda
Weiss Lipinski, and Richard Alan Weiss, 20955 Stevens Creek Boulevard #A (Whole Foods
Market), 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 6th day of December 2006, by the following vote:
Vote
Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
Wang, Kwok, Lowenthal, Mahoney, Sandoval
None
None
None
. /[ 17L.6-{ i it ~1 /7z:.zzl
City Clerk
APPROVED:
of ._ ( ;1,
A--.,. Vllt~...
ATTEST:
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
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RECORDED AT THE REQUEST OF
and
WHEN RECORDED RETURN TO:
SP ACE ABOVE FOR RECORDERS USE ONLY
MAINTENANCE AGREEMENT
THIS MAINTENANCE AGREEMENT ("Agreement") is made and entered into
this 1st day of August, 2006, by Paul E. Weiss and Barbara H. Weiss, as Trustees of the
Weiss Family Trust, dated December 13, 1982, Mark Bennett Weiss, Linda Weiss
Lipinski, and Richard Alan Weiss, (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 is the owner of the real property and improvements that comprise the
Whole Foods Market Project ("Project") that is located within the City of Cupertino,
County of Santa Clara, State of California ("City").
B. As set forth herein, the provisions of this Agreement are intended to and shall
run with the Project and be binding upon an 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 the City of certain improvements, including
landscaping, that are situated on real property owned by City along Stevens Creek
Boulevard 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 Runnine With the Land: Property Subiect to Aereement: All of the
real property described in Exhibit "A" shall be subject to the Agreement. It is intended
and determined that the provisions of this Agreement shall run with the land and shan 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 each successor in interest of the owners thereof. Each and all of the
limitations, easement, 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 Cost of repair. Replacement and Maintenance: Declarant
shall, at its sole cost and expense, maintain, repair, 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 Stevens Creek Boulevard (the "Frontage Area of the
Project"). Exhibit "B" shows the portion of the City's property for which Declarant is
responsible for maintenance hereunder.
3. Definitions of Repair. Reolacement and Maintenance: The repair, replacement
and maintenance to be undertaken and performed under this agreement shall include all
work necessary to maintain the Frontage Area of the Project in a good, useable condition
under all weather conditions. The Frontage Area of the project shall be maintained to the
standards, specifications and eondition 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 by the Declarant
4. Decisions Re2:arding Performance of the Alrreement: All decisions regarding
the need for maintenance, the implementation thereof, and any particular other matters
relating to the Frontage Area of the Project shall be determined by the Department of
Public Works of the City.
5. Indemnitv: 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 of the 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. Attornev's Fees: In the event that either 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.
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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 of 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 agreements which can be separated from the invalid,
unenforceable provisions shall, nevertheless, continue in full force and effect. This
Agreement shall be construed according to its fair meaning. Any rule of law or legal
decision that would require interpretation of any ambiguities in this Agreement against
the party that has drafted this Agreement or any provision hereof shall not be applicable
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 Agreement shall be recorded and shall
be executed and acknowledged in proper recordable form.
12. 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 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 ftrst above written.
By:
By:
'Barbara H. Weiss
BY:~
B~~_~~~__:~_
Linda Weiss Lipinski
By: ~1~
Richard Alan Weiss
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COUNTY OF
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STATE OF CALIFORNIA,
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On , 2006, before me the undersigned, a Notary Public
in and for said State, personally appeared
personally known to me (or 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.
WITNESS my hand and official seal.
Notary Public in and for said State
C.C.l(a).2
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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State of California }
County of S A # 7 ^ '-I- P\ I\.--A ss.
On 1\ \J ,-,\,t ~ l' ? ~ '\)~ ubefore me, HERBERTLHAMERSLOUGH ..v ~"f' V\lI\Y jJu ,f}t:., r:.",
Date" Q Name and Title of Officer (e.g" "Jane Doe, Notary PUDlic")
personally appeared IJ' f\ ~ ^ S''' VV'_..J lS-..s ..h 1Hl M IG 111\ H. W _=-I ~ S. J-1.Jl../) A wrl:B
. ~ Name(s) of Signer(s) --
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o personally known to me
HERBERT l. HAMERSlOUGH
Commission # 1462036
Notary Publlc - California ~
Santa Clara County
My Comm. Expires Feb 9.2008
p(proved to me on the basis of satisfactory evidence
to be the person(s) whose name(sMs/are subscribed
to the within instrument and acknowl~ged to me that
~~e/they executed the same in ~~/their
authorized capacity(ies), and that by ~ r/their
signature(s) on the instrument the person(s), r the
entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
Place Notary Seal ADove
~A~
Signature of Notary PUDlic
OPTIONAL
Though the information below is not required by law, it may prove 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: M ~ ( "v"(" ,; y /\.JI ~ A 6-fL'->'.............r./VI. ~- rr
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
~ Individual
o Corporate Officer - Title(s):
o Partner - 0 Limited 0 General
o Attorney in Fact
o Trustee
o Guardian or Conservator
D Other:
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Signer's Name:
o Individual
o Corporate Officer - Title(s):
o Partner - 0 Limited 0 General
o Attorney in Fact
o Trustee
o Guardian or Conservator
o Other:
.
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Signer Is Representing:
Signer Is Representing:
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@2oo4 National Notary Association' 9350 De Soto Ave" P,O, Box 2402' Chatsworth, CA 91313-2402 Item No, 5907 Reorder: Call Toll-Free 1-800.876.6827
EXHIBIT A
LEGAL DESCRIPTION
All that certain real property situate in the City of Cupertino, County of Santa Clara, State of California,
described as follows.
PARCEL ONE:
A portion of the West ~ ofthe Southwest 'l4 of the Northwest 'l4 of Section 13, Township 7 South,
Range 2 West, Mount Diablo Base and Meridian, described as follows:
BEGINNING At a nail set in the Westerly line of said Section 13, distant thereon North 185.00 feet
from an iron bar at the Southwesterly comer of said Northwest 'l4 of Section 13; thence along said
Westerly line of Section 13, North 59.32 feet at a nail at the intersection thereof with the Westerly
prolongation of the Southerly line of the certain parcel of land conveyed to Evelyn Marie Maderis, et
vir, by Deed recorded in Book 2623 of Official records, page 65, Santa Clara County Records; thence
along said prolongation and said Southerly line, East 128.00 feet to an iron pipe at the Southeasterly
comer thereof; thence along the Easterly line oflands so conveyed to Maderis, North 90.00 feet to an
iron pipe at the Northeasterly comer thereof, thence along the Northerly line of said lands so conveyed
to Maderis and the Westerly prolongation thereof, West 128.00 feet to a nail in said Westerly line of
Section 13; thence along said Westerly line of Section 13, North 114.48 feet to a nail at the intersection
thereof with the Westerly prolongation of the Southerly line of the certain parcel of land conveyed to
Assembly of God of Monta Vista, Cupertino, California, a corporation, by deed recorded in Book 3583
of Official records, page 207, Santa Clara County Records; thence along said prolongation and said
Southerly line of said lands so conveyed to said Assembly of God, East 662.40 feet to an iron pipe at the
Southeasterly comer thereof in the Easterly line of the West ~ of the Southwest 'l4 of said Northwest 'l4
of Section 13; thence along last mentioned line, South 0001' 50" East 447.55 feet to a point in the
Southerly of said Northwest 'l4 of Section 13; thence along last mentioned line (being also the original
center line of Stevens Creek Boulevard) South 89050' 30" West 475.64 feet to the Southeasterly comer
of Parcel 2 as described in the Deed to Western Title Guaranty Company, Santa Clara County division, a
corporation, recorded in Book 4728 of Official Records, page 498, Santa Clara County Records; thence
along the Easterly line of said Parcel 2 and the Easterly line of Parcel 1 as described in the last
mentioned deed, North 185.00 feet to an iron pipe at the Northeasterly comer of said Parcell; thence
along the Northerly line of said Parcell and the westerly prolongation thereof; South 89053' 30" West
187.00 feet to the POINT OF BEGINNING. CONTAINING 5.758 acres, more or less.
EXCEPTING THEREFROM THE FOLLOWING DESCRIBED PROPERTY:
BEING a strip ofland fifteen (15) feet in width, measured at right angles, a portion of that certain parcel
of land described in the deed to Chaffetz and Lavine, recorded in Book 6705 of Official Records of
Santa Clara County at page 274, et seq., more particularly described as follows:
BEGINNING at the intersection of the Easterly line of the above- referenced parcel with the existing
line of Stevens Creek Boulevard at 30.00 feet from the original centerline thereof; and running thence
along said line of Stevens Creek Boulevard South 89053'30" West 475.64 feet; thence due North 15.00
feet to the intersection with a line drawn parallel to and distant Northerly at right angles 45.00 feet from
said original centerline of Stevens Creek Boulevard;
thence along said parallel1ine North 89053' 30" East 475.64 feet; thence South 0001' 50" East 15.00
feet to the point of beginning and containing 0.164 acres ofland, more or less.
ALSO EXCEPTING THEREFROM the following described parcel of land:
BEING a strip of land 25 feet in width, measured at right angles, a portion of that certain parcel of land
described in the Deed of Chaffetz and Lavine, recorded in Book 6705 of Official Records, page 274, et
seq., Santa Clara County Records, and more particularly described as follows:
BEGINNING AT A POINT in the Easterly line of Stelling Road at 40 feet in width, distant thereon due
North 185.00 feet and due East 12.00 feet from the Southwestern corner of the Northwest lf4 of Section
13, Township 7 South, Range 2 West, Mount Diablo Base and Meridian; running thence along said line
of Stelling Road due North 59.32 feet; thence due East 25.00 feet to the intersection with a line drawn
parallel to and distant Easterly at right angles 37.00 feet from the West~rly line of the aforementioned
Northwest lf4 of Section 13; thence along said parallel line due South 59.32 feet; thence due West 25.00
feet to the point of beginning and containing 0.034 acres ofland, more or less.
ALSO EXCEPTING THEREFROM THE FOLLOWING DESCRIBED PROPERTY:
BEING a strip of land 25 feet in width, measured at right angles, a portion of that certain parcel of land
described in the Deed to Chaffetz and Lavine, recorded in Book 6705 of Official Records, page 274, et
seq., Santa Clara County Records, and more particularly described as follows:
BEGINNING AT A POINT in the Easterly line of Stelling Road at 40 feet in width, distant thereon due
North 334.32 feet due East 12.00 feet from the Southwestern corner ofthe Northwest ~ of Section 13,
Township 7 South, Range 2 West, Mount Diablo Base and Meridian; thence along said line of Stelling
Road due North 114.48 feet; thence due East 25.00 feet to the intersection with a line drawn parallel to
and distant Easterly at right angles 37.00 feet from the Westerly line of the aforementioned Northwest ~
of Section 13; thence along said parallel line due South 114.48 feet; thence due west 25.00 feet to the
POINT OF BEGINNING and containing 0.066 acres of land, more or less.
PARCEL TWO:
BEGINNING AT A POINT in the Easterly line of Stelling Road at 40 feet wide, distant thereon 378.48
feet South of the point of intersection of said line of Stelling Road, with the Westerly prolongation of
Southerly line of Tract No. 936, the Map of which was filed for record May 12, 1952 in Book 36 of
Maps, page 52, Santa Clara County Records; thence along said line of Stelling Road, South 90.00 feet;
thence leaving said line at right angles East 116.00 feet to an iron pipe; thence at right angles North and
parallel with said line of Stelling Road, 90.00 feet to an iron pipe; thence at right angles West 116.00
feet to the point of beginning and being a portion of the Northwest ~ of Section 13, Township 7 South
Range 2 West, Mount Diablo Base and Meridian.
EXCEPTING THEREFROM the fol1owing described parcel of land:
BEING a strip ofland 25 feet in width, measured at right angles, a portion of that certain parcel ofland,
described in the Deed to Lansford, recorded in Book 6834 of Official Records of Santa Clara County, at
page 22, et seq., more particularly described as fol1ows:
BEGINNING at a point in the Easterly line of Stelling Road, at 40 feet in width, distant thereon due
North 244.32 feet and due East 12.00 feet from the Southwestern comer of the Northwest ~ of Section
13, Township 7 South, Range 2 West, Mount Diablo Base and Meridian; and running thence along said
line ofSte11ing Road due North 90.00 feet; thence East 25.00 feet to the intersection with a line drawn
parallel to and distant Easterly 37.00 feet from the Westerly line of the aforementioned Northwest ~ of
Section 13; thence along said paral1elline South 90.00 feet; thence West 25.00 feet to the point of
beginning and containing 0.052 acres ofland, more or less.
EXCEPTING THEREFROM PARCELS ONE AND TWO the underground water or rights thereto,
with no right of surface entry, as granted to the City of Cupertino by instrument recorded
November 09, 1980 in Book K 752, page 274, Offical Records.
ARB No: 326-31-018,020
APNNo: 326-31-018; 326-31-020
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KEYNOTES _ .
WHOLE
FOODS
MARKET
20955 STEVENS CREEK BLVD.
CUPERTINO, CALIFORNIA
SAND HILL
PROPERTY COMPANY
B 9OOHlghStrllet,SUIle1
------ Palo Arlo. CA 9t301
p: 1150.853.1908
f: 650.863,1845
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