14-016 Bollinger Venture, LLC Stormwater management facilities operation and maintenance agreement Tract 10157 Lots 1-15RECORDED AT THE REQUEST OF:
WHEN RECORDED RETURN TO:
City of Cupertino
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DOCUMENT: 22473410
Pages: 6
Fees .... 1'0.00
Taxes...
Copies..
AMT PAID 10.00
REGINA ALCOMENDRAS RDE # 005
SAN7A CLARA COUNTY RECORDER 12/17/2013
Recorded at the request of 8:29 AM
City
-- SPACE ABOVE THIS LINE FOR RECORDER'S USE -
STORMWATER MANAGEMENIF FACILITIES OPERATION
AND MAINTENANCE AGREEMENT
TRACT 10157
THIS STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTENANCE
AGREEMENT ( "AGREEMENT ") is made and entered into this /6' if day of 2013,
by .Bollinger Venture LLC, a California limited liability company; ,( "COVENANTOR ") and the City of
Cupertino ( "CITY ") based on the facts cited herein.
COVENANTOR is the owner of all that certain real property located in the City of Cupertino, County of
Santa Clara, described as follows:
Lots l -5, as shown on the map of Tract No.10157 filed for record on
March 27, 2013, in Book 860 ofMaps atPages 21 through 22, inclusive, in
the Official Records of the County of Santa Clara, State of California
( "PROPERTY ") -
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 all of 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
C.3 Stormwater Management Plan prepared by IIME Engineers and dated "November 30,2012", 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 this reference.
LITTLE& SAPUTO
ATTORNEYS AT LAW
1901 OLYMPIC BOULEVARD, #100
WALNUT CREEK, CA 94596 -5024
(925) 944 -5000
1 12/02/13
E. The CITY has reviewed and approved the C.3 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 C.3 Stormwater Management Plan, the
COVENANTOR, hereby covenants and agrees with the CITY as follows:
I . Covenants Running With the Land: Property Sub*ect to Agreement: All of the PROPERTY 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
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 C.3 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 Inspections by the CITY: At reasonable times and in a reasonable manner as provided in the
ORDINANCE and the Stormwater Management :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 FACILIT:[ES 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 C.3 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 or its successors and assigns. 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, as they may be amended from time to time.
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 COV ENANTOR'S, its successors' and /or assigns' construction,
operation or maintenance of the FACILITIES except to the extent that such claims, liabilities, actions, causes
2 12/02/13
LITTLE & SAPUTO
.ATTORNEYS ATfLAIV
1901 OLYMPIC BOULEVARD, 9100
WALNUT CREEK, CA 94596 -5024
(925) 944 -5000
of action, and damages arise out of or related to the CATY'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
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.
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 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.
H. 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. 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 from 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.
3 12/02/13
LITTLE& SAPUTO
ATTORNEYS AT LAW
1901 OLYMPIC BOULEVARD, N 100
WALNUT CREEK, CA 94596 -5024
(925)944 -.5000
15. Facilities No Longer Required: 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.
Executed the day and year first above written.
COVENANTOR CITY OF CUPERTINO
Bollinger Venture, LLC;
a California limited liability company
STATE OF CALIFORNIA
T�
COUNTY OF % N
1611
By:
e ,.t,*�
Title:
DEBORAH MAGALLANEZ
Commission 0 1938001 =
Notary Public - California
Z Alameda County
MY Comm. Ex ires Ma 23, 2015
Notary Public,
personally appeared N1(ACVkU11 -W, 1V1%1V1f _ U
who proved to me on the basis of satisfactory evidence to be the person -s) whose namo�s)-is /are subscribed
to the within instrument and acknowledged to me that /s4e /thay executed the same irl�7her /their
authorized capacity(ies), and that by i' /her/their- signatureks)-on the Instrument, the person( -s)-or the entity
upon behalf of which the person(s�ted, 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.
WITII�ESS my hand and official seal.
Signature
4 12/02/13
LITTLE & SAPUTO
ATTORNEYS AT LAW
1901 OLYMPIC BOULEVARD,. #100
WALNUT "CREEK, CA 94596 -5024
(925) 944 -5000
STATE OF CALIFORNIA s
I
COUNTY OF J
On , before me; _ , Notary Public,
personally appeared
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 he /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.
WITNESS my hand and official seal.
ignature
5
LITTLE & SAPUTO
ATTORNEYS-A`T LA IV
1901 OLYMPIC, BOULEVARD, #100
WALNUT CREEK, CA 94596 -5024
(925) 944 -5000
12/02/13
CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189
State of California
County of yl� 17 `/ �+ ,a 14 1
On DeC . 14,2—(3 before me, if i� _� e P
Date- Here Insert N e and Title of the Officer
personally appeared I-ale ti
Name(s),of Signer(s)
who proved to me on the basis of satisfactory
evidence to be the persons) whose names mare
subscribed to the within instrument and acknow'je'dged
to me that (h he /they executed the same in
(hi ler /their authorized capacityQet), and that by
/hi her /their signature�sf on the instrument the
l erson,(sy, or the entity upon behalf of which the
person,(s) acted, executed the instrument.
KIRSTEN RENEE SOUARCIA
Commission # 1906896 z I cedify under PENALTY OF PERJURY under the
Notary Public - California z laws of the State of California that the foregoing
Z .P% a Santa Clara County ' paragraph is true and correct.
My Comm. Expires Oct 4, 2014
WITNESS my hand and official seal.
Signature:
/P
Place Notary Beal Above 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.
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:
❑ Corporate Officer — Title(s):
❑ Individual
❑ Partner — ❑ Limited ❑ General Top of thumb here
❑ Attorrney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Number of Pages:
Signer's Name;
❑ Corporate Officer— Title(s):
❑ Individual
❑ Partner — ❑ Limited ❑ General Top of thumb here
❑ Attorney in Fact
❑'Trustee
❑ Guardian or Conservator
❑ Other:
;signer Is Representing:
0 2010 National Notary Association • National Notary.org • 1- 800 -US. NOTARY (1- 800 - 876 -6827) item nbaui