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08-047, Stormwater mgmt. facilities operation and maint.
RECORDING REQUESTED BY: City of Cupertino WHEN RECORDED, MAIL TO: City Clerk's Office City of Cupertino 10300 Torre Avenue Cupertino, CA 95014-3255 NO FEE IN ACCORDANCE WITH GOV. CODE 6103 ~~~~B~INYY~~W~~~N~IM~Nf Pages 10 Fees.... ~ No Fees Taxes . Copies.. AMT PA[D REGINA ALCOMENDRAS SANTA CLARA COUNTY RECORDER Recorded at the request of City RDE # 008 3/26/2008 305 PM (SPACE ABOVE THIS LINE FOR RECORDER'S USE) STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTENANCE AGREEMENT APN #326-33-110 riginal O For Fast Endorsement RECORDED AT THE REQUEST OF and WHEN RECORDED RETURN TO: SPACE ABOVE FOR RECORDER'S USE STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTENANCE AGREEMENT County Assessor's Parcel # 326-33-110 THIS STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTENANCE AGREEMENT ("AGREEMENT") is made and entered into this 3 rc~ day of.~ ce no any , 2068 , by 1200 San Mateo Avenue, 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 iri 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 AP FINAL -1- 11/25/03 Consulting Engineers and dated March 2007, 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: 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 modifications to the FACILITIES as maybe 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 maybe 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 COVENANTORS, 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 byrecorded written agreement for the benefit of the CITY. Such written agreement maybe 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 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. Progerty 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 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 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 maybe 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 firs, above written. By: ~`'~ " Name: Title: (Notary acknowledgment to be attached) ~~ By: Name: c D w IC ~ Title: (-' ` /Ids, L FINAL -5- 11/25/03 STATE OF CALIFORNIA ) SS COUNTY OF SANTA CLARA On ~-~ ~ , 20~, before me, ~mbeY ~fSh - C~C%, ~ t'~Z11Z,~ ~~ ~ ~ 1 ~ personally appeared ~Q~_ ,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. C/1 NOTARY PUBLIC AMBER RESNICK COMM. 51589954 NOTARY PUlLIC ~ CALIFORNIA SAN MIATEO COUNTY + Comm. Exp. ,~1NE 25, 2009 FINAL -6- 11/25/03 Chappell Surveying Services Land Surveying Geographic Information Systems Precision Agriculture Exhibit "A" All that certain real property situate in the City of Cupertino, County of Santa Clara, State of California being all of Parcel B as said parcel is shown on that certain parcel map filed for record in the office of the Recorder for said Santa Clara County on August 27t", 1980 in Book 469 of Maps at page 39. This description was prepared by me or under my direction in conformance with the requirements of the Professional Land Surveyor's Act. /D~ Zook Brett J. Chappell, P.L.S. 7547 Expires: 12/31 /2007 lAND 3 J "EXP. Z/ 310 ~ ~ * \ N0.7547 / lofl Phone: (209) 845 9694 • Fax: (209) 845 9654 ~ email: survey@garlic.com 680 Esther Way Oakdale, CA 95361 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of ~ 0.n`E a C la~r-a.. On -Jan S, ZC~GS before me, ~~ rn 1`tiar't~ ~ vn -~ , (~ o~a.r'~ ~~b tic , Date Here Insert Name and Title of the Officer personally appeared ~av ~ d {~rLgpp Name(s) of Signer(s) lOrtA ~AARIE SMtiH _ CorrxrMtebn ~ lbli54d9 • Notary Public - CaNfornla SorNa Clara County Nh- Camm. Expkes Nov 1, 20 who proved to me on the basis of satisfactory evidence to be the person(s') whose name(a'} is/are subscribed to the within instrument and acknowledged to me that he/sfae,~t~-ie~+ executed the same in his/I~e~F~eir authorized capacity(~ies), and that by his/feir signature(s) on the instrument the person(s), or the 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. Place Notary Seal Above Signature 9~ti-rr~- ~~ Signature of Notary u is 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: Document Date: Signer(s) Other Than Named Above: 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 Representing: Top of thumb here Number of Pages: Signer's Name: ^ Individual ^ Corporate Officer -Title(s): ^ Partner - ^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: Signer Is Representing Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., PO. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNOtaryorg Item #5907 Reorder: Call Toll-Free 1-800-876-6827