CC Resolution No. 06-196
RESOLUTION NO. 06-196
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
AUTHORIZING EXECUTION OF A STORMW A TER MANAGEMENT FACILITIES
OPERATION AND MAINTENANCE AGREEMENT WITH 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), APN 316-31-018 AND 316-31-020
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, 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
ATTEST:
APPROVED:
,k!v nz,l't/~. !~ :?J:;7iZti.
City Clerk !
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RECORDED AT THE REQUEST OF
and
WHEN RECORDED RETURN TO:
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SPACE ABOVE FOR RECORDERS USE ONLY
STORMW A TER MANAGEMENT FACILITIES
OPERATION AND MAINTENANCE AGREEMENT
County Assessor's Parcel # 326-31-018; 326-31-020
THIS STORMW A TER MANAGEMENT FACILITIES OPERATION AND
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 "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 Kier & Wright Civil Engineers & Surveyors, Inc. and dated January 31,
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2006, 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 the AGREEMENT.
NOW, THEREFORE, in consideration ofthe benefit received and to be received by
the COVENANTOR, its successors and assigns, as a result ofthe CITY'S approvalofthe
Stormwater Management Plan, the COVENANTOR, hereby covenants and agrees with the
CITY as follows:
1. Covenants Running With the Land: Property Subiect 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,
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.
3. Facilitv Modifications: At their sole expense, the COVENANTOR, its successors and
assigns, shall make such changes or modifications 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. Facilitv Inspections bv 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
ORDINANCE, the Stormwater Management Plan and any amendments thereto
approved by the City.
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5. Failure to Perform Required Facility Renairs 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 whieh 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, shan 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 Resnonsibilities of COVENANTOR: Initiany, 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 an its
obligations and responsibilities under this AGREEMENT accruing after the date of
such Transfer to the extent such obligations and responsibilities are applicable to the
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 that
the Transferee joins in the execution of such deed or instrument. A certified copy of
such deed, instrument or agreement shan 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.
8. Pronertv Transfer: Nothing herein shall be construed to prohibit a transfer by the
COVENANTOR to subsequent owners and assigns.
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9. Attornevs' 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 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.
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 expressed herein.
12. Severabilitv: 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 the 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 event any conflict arises between the provisions of any such
amendment and any of the provisions of any enter 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 further 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, its successors and or/ assigns, shall
record in the Clerk's Office, at its/their expense.
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Executed the day and year fIrst above written.
(GRANT~ ' _.. "
By: ~
au) E. ~ss
By: t3tW~ /I--tJ~
I Barbara H. Weiss
By: fl1t~f3_w~
BY~:S))
~ei~S Lipinski
By:' ~
ichard Alan WeISS
(Notary acknowledgement to be attached)
CITY OF CUPERTINO
By:
Name:
Title:
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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HERBERT L. HAMER SLOUGH
Commission # 1462036
Nolary Public. California t
Sanla Clara County
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o personally known to me
~roved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) iJ(are subscribed
to the within instrument and acknowledged to me that
h~hEJ'ttley executed the same in ~~h/their
authorized capacity(ies), and that by ~ ritheir
signature(s) on the instrument the person(s), r the
entity upon behalf of which the person(s) acted,
executed the instrument.
Place Notary Seal Above
WITNESS my hand and official seal.
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Signature of Notary Public
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.
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STATE OF CALIFORNIA )
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COUNTY OF SANTA CLARA )
On , 20_, before me, ,
personally appeared ,personally known to me or
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 executed the same in
his authorized capacity, and that by his signature on the instrument the person, or the entity
upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
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NOTARY PUBLIC
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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 12 of the Southwest Y-i of the Northwest Y-i 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 Y-i 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 interseetion
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 Y-i of said Northwest Y-i
of Section 13; thence along last mentioned line, South 0001' 50" East 447.55 feet to a point in the
Southerly of said Northwest Y-i 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 Parcell 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 of land 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 parallel line 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 of land, more or less.
ALSO EXCEPTING THEREFROM the following deseribed 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 ofChaffetz 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 comer of the Northwest ~ 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 Westerly line of the aforementioned
Northwest ~ 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 ofland 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 comer of the 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 following 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 deseribed as follows:
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 corner of the Northwest 1,4 of Section
13, Township 7 South, Range 2 West, Mount Diablo Base and Meridian; and running thence along said
line of Stelling 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 ofthe aforementioned Northwest ~ of
Section 13; thence along said parallel line South 90.00 feet; thence West 25.00 feet to the point of
beginning and containing 0.052 acres of land, 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