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13-179 Stormwater Management Facilities Operation and Maintenance Agreement, APN 326-34-069, 20625 Alves DriveRECORDING 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 27383 DOCUMENT: 22456695 ��ah�4M�iV�B1�1Y�14NViNi Pages: 10 AMT PAID REGINA ALCOMENDRAS RDE # 025 SANTA CLARA COUNTY RECORDER 11/25/2013 Recorded at the request. of 9:23 AM County Agency (SPACE ABOVE THIS LINE FOR RECORDER'S USE) STORMWATER MANAGNEMENT FACILITIES OPERATION AND MAINTENANCE AGREEMENT APN's 326 -34 -069 20625 Alves Drive, Cupertino, CA 95014 Apple Inc, a California Corporation 0 Original 0 For Fast Endorsement RECORDED AT THE REQUEST OF and WHEN RECORDED RETURN TO SPACE ABOVE FOR RECORDER'S USE ONLY STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTENANCE AGREEMENT APN 326--34-069 20625 Alves Drive, Cupertino, CA 95014 THIS STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTENANCE AGREEMENT ( "AGREEMENT ") is made and entered into this 7 day of Wove -bef , 2013 , by Apple Inc., a California corporation, (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 Stonnwatter 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 August 20, 2013, which plans and any FINAL -1- 10/30/13 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 Stonn 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 ubject 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 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 Management 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 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 Infections 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 F.A.CILITIES 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 FINAL -2- 10/30/13 by the CITY. 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 iin 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. 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 COVENATOR shall be released of all of its obligations to the extent such obligations and responsibilities are applicable to that portion of the PROPERTY included in such Transfer. COVENATOR and all successors in interest shall disclose to and prospective Transferee that the obligations of this AGREEMENT run with the land, as expressed in Section 1. COVENATOR and all successors in interest shall inform the CITY when any such transfer takes place and identify the Transferee. Property Transfer: Nothing herein shall be construed to prohibit a transfer by the COVENANTOR to subsequent owners arid assigns. Attorneys' Fees: In the event that any party institutes legal action or arbitration against the other to interpret or enforce this AGRE EMENT, 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, FINAL -3- 10/30/13 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 filly 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 otheir 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- 10/30/13 Executed the day and year first above written. Apple, Inc., a Cal j;ke�6rporation (COVENANTOR) By: Name: Cristina R pe Title: Real Estate & Dev o merit Direct (Notary acknowledgment to be attached) CITY OF CUPERTINO (City) By: Name. Timm Borden _ Title: Director of Public Works FINAL -5- 10/30/13 Exhibit A All that real property located in the City of Cupertino, County of Santa Clara, State of California, more particularly described as: PARCEL A SHOWN ON A PARCEL MAP RECORDED OCTOBER 18, 1979, IN BOOK 451, PAGE 55 OF MAPS,, RECORDS OF SANTA CLARA COUNTY. APN 326 -34 -069 (Commonly known as 20625 Alves Drive, Cupertino, California; APN 326 -34 -069) CALIFOT�1t NIA ��1.��TL�� °Pt�tl�TR OSE State of California County of swa U CLM On 1 aAdM y olbl3 before me, / a-- � lWSo ry I,--) U t t (Here insedname and tiil of the officer) personally appearedT l who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that lie /she /they executed the same in his/her /their authorized capacity(ies), and that by his/her /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 is true and correct.' WI NESS my hand and official seal. TAMMY JILL CONSTON Commission # 1957685 a m Notary Public - California z zzz Z (Notary S 2) Santa Clara County Signature ary Public My Comm. Expires Oct 22, 2015 ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT (Title or description of attachod document) (Title or description of attached document continued) Number of Pages Document Date (Additional information) CAPACITY CLAIMED BY THE SIGNER ❑ Individual (s) ❑ Corporate Officer (Title) ❑ Partner(s) • Attorricy -in -Fact • Trustee(s) ❑ Other 2008 Version C,4PA 1,12.10.07 800 -573 -9865 %%,%%-A,.NotaryClasses.eom INSTRUCTIONS FOR COMPLETING THIS FORM Anv acknowledgment completed in California must contain ivi -biabe exactly as appears above in the notary section or a separate acknowledgment faun must be properly completed and attached to that document. The only escepilon is if a document is to be recorded outside of Calilarnia. in such iristnnces, any alternative acknowledgment verbiage as nrmv be printed on such a document so long as the verbiage does not require the notary to do .something that is illegal for a notarn in Califonria (i.e. cer•tf).Wng the authorized capacity of•the signer). Please check the ,ioctnnent carefulli /or proper notarial wording and attach this form ijrequirrd. • Stale and County information must be the State and County where the document signer(s) petsonally appeared before the notary public for acknowledgment. • Date of notarization must be the dale that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. • 'rho notary public must print his or her name as it appears within his or her commission followed by a comma and them your title (notary public). • Print the name(s) of document signer(s) who personally appear at the time of notarization. • Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. he /shc /them is /are ) or circling the correct forms. Failure to correctly indicate this information may lead to rejection of document recording. • The notary seal impression must be clear and photographically reproducible. Impression must not. cover text or lines. if seal impression smudges, to -seal if a sufficient area permits, otherwise complete a different acknowledgmcni.form. • Signature of the notary public must match the signature on file with the office of the county clerk. Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. Indicate title or type of attached documeut,.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 CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT State of California / County of SaI iii CIA,-, CIVIL CODE § 1189 On Nov l yf 203 before me, � ' (u 6 1 c Date Here Insert Na—Iffie and Title of th Officer personally appeared �� -'1'► '"� E� r °��H Name(s) of Signer(s) who i P roved to me on the basis of satisfactory evidence to be the personj4) whose nameW )s re subscribed to t within instrument and acknowledged to mfa that h she /they executed the same in bher /their authorized capacity(Ws), and that by )s her /their signatureo on the instrument the person(, or the entity upon behalf of which the person) acted, executed the instrument. KI- - -RENEE SOU-- I certify under PENALTY OF PERJURY under the Commission E OUAR 8 laws of the State of California that the foregoing Z -ems Notary Public - California paragraph is true and correct. Santa Clara County My Comm. Expires Oct 4, 2014 WITNESS my hand and official seal. Signa.ture:9 Place Notary Seal Above OPYIOMAL. Signature of Notary Public 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 .,4 P^/-? 24 ,A- 3 Y - 06 y 11 Title or Type of Document: S4,- wg+.e r I'fIL en•� C /t ie f i`t9 rC��ntnT Document Date: 11/0 ye twt(o e-tr 7 r 2A Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Individual INNIffim ❑ Partner — ❑ Limited ❑ General Top of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: �c" Signer's Name: ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General Top of thumb here El Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: © 2010 National Notary Association• National Notary.org - 1-800-US NOTARY (1- 800 - 876 - 6132/) 0• t "NO FEE" City of Cupertino CERTIFICATE OF ACCEPTANCE is hereby given in order to comply with the provisions of Section 27383 of the Government Code. This is to certify that the maintenance agreement with 20625 Alves Drive, Cupertino, CA 95014 and the City of Cupertino, a governmental agency is hereby accepted by the Public Works Director, and the grantee consents to recordation thereof by its duly authorized officer. Dated: November 20, 2013 By: - Doroth �N e tfoft' Senior Office -Assistant,