14-058 Stormwater Management Facilities Operation and Maintenance Agreement, Main Street Cupertinop, APNS 316-20-078, 079 & 085 DOCUMENT: 22567429
Pages: 12
RECORDING REQUESTED BY: I Fees. No Fees
11 I i_ I Copees.
City of Cupertino AMT es D
WHEN RECORDED,MAIL TO:
REGINA ALCOMENDRAS RDE # 025
SANTA CLARA COUNTY RECORDER 4/14/2014
City Clerk's Office Recorded at the request of 12:24 PM
City of Cupertino City
10300 Torre Avenue
Cupertino, CA 95014-3255
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
NO FEE IN ACCORDANCE
WITH GOV. CODE 27383
STORMWATER MANAGEMENT FACILITIES OPERATION AND
MAINTENANCE AGREEMENT
Main Street Cupertino
APN 316-20-0178, 079 & 085
Original
13 For Fast Endorsement
i
RECORDED AT THE REQUEST OF )
and
WHEN RECORDED RETURN TO: )
SPACE ABOVE FOR RECORDER'S USE ONLY
STORMWATER MANAGEMENT FACILITIES
OPERATION AND MAINTENANCE AGREEMENT
APNS 316-20-078, 079 & 085
Main Street Cupertino
THIS STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTENANCE
AGREEMENT ("AGREEMENT") is made and entered into this X71ay of iM A r-c-n , 2014,
by Main Street Cupertino Aggregator, LLC, a Delaware 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 "P:R.OPERTY").
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, stormwa.ter management facilities ("FACILITIES"),
more particularly described and shown in the Stormwater Management Plan prepared by Sandis
Civil Engineers and dated August 2013, which plans and any amendments thereto, are on file
FINAL -1- 2/6/14
N .
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:
I. 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 Ovmer, 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 assi;;ns, 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 s, 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 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
FINAL -2- 2/6/14
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 remedies as provided by law, including, but not limited to, civil
and criminal remedies set forth in Sections 9.18.190, 9.18.230 and 9.18.250 of the
ORDINANCE, or as subsequently amended.
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 FACILII['IES 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 responsibilitics 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 provision 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
FINAL -3- 2/6/14
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 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, there 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/oar assigns, shall record in the Clerk's Office, at
its/their expense.
FINAL -4- 2/6/14
Executed the day and year first above written.
Main Street Cupertino Aggregator, L
a Delaware limited liability company
Name: 7--�-:
Title: o�L.�Z .v?/� 2 _-
(Notary acknowledgment to be attached)
CITY OF CUPERTINO
By: _
Name. mrf'Borden
Title: Director of Public Works
FINAL -5- 2/6/14
CALIFORNIA ALL-PURPOSE
CERTIFICATE OF AC KNOWLEDGMENT
State of California
County of <+A
On before me, l t �t�_ Ao7,472 t/ 09 . L!G ,
,
—� t ( ere insert name and.titic f the officer)
'personally appeared V'rm /N-u
who.proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/arsubscribed to
the within instrument and acknowledged to me that hclgKee/may executed the same in his/lyef/tWr authorized
capacity(ies), and that by his/l�WtVfr signatures) on the instrument'the person(§), 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.
KATIE YAO
+� Commission # 1914559
WITNESS my hand and official seal. i , "+�; Notary Public -California z
z ".2'y San Mateo County r
My Comm. Expires Dec 5, 2014
Signature of Notary Public (Notary Sea])
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verbiage.does not require'Ihe.notui}+to do something that is illegal jb notary otary in
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2008 Version CAPA v12.10:07 8100-873-9865 www:NotaryClasscs.com
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189
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KIRSTEN RENEE SOUARCIA
I certiby under PENALTY OF PERJURY under the
fiCommission# 1906898 laws of: the State of California that the foregoing
fi(, z .-® Notary Public -California z paragraph is true and correct. )
Z ' Santa Clara County
My Comm. Expires Oct 4, 2014
WITNI=SS my hand and official seal.
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Though the information below is not required by law, it may prove valuable to persons relying on the document
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Description of Attached Document
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EXHIBIT"A"
TRACT NO. 10172
MAIN STREET CUPERTINO
OVERALL PROPERTY BOUNDARY j
ALL THAT CERTAIN REAL PROPERTY LYING IN THE CITY OF CUPERTINO, COUNTY OF
SANTA CLARA AND STATE OF CALIFORNIA, BEING PARCEL B OF DOCUMENT NUMBER
15128280, PARCEL A OF DOCUMENT NUMBER 22385299, ALL IN SANTA CLARA COUNTY
RECORDS, TOGETHER WITH THAT PORTION 10F FINCH AVENUE LYING NORTH OF THE
NORTH RIGHT OF WAY'LINE OF STEVENS CREEK BOULEVARD,AND SOUTH OF THE
SOUTHERLY RIGHT OF WAY LINE OF VALLCO PARKWAY,AS SHOWN ON THE PARCEL
MAP FILED ON AUGUST 3, 1987 IN BOOK 576 01= MAPS AT PAGES 31 AND 32, SANTA
CLARA COUNTY RECORDS, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF SAID PARCEL B;.
THENCE NORTH 00 024'00"WEST ALONG THE WEST LINE OF SAID PARCEL B,A DISTANCE
OF 527.77 FEET;
THENCE NORTH 88 054'46" EAST ALONG THE NORTH LINE OF SAID PARCEL B,A DISTANCE
OF 195.49 FEET;
THENCE NORTH 01605'14"WEST ALONG THE WEST LINE OF SAID PARCEL B,A DISTANCE
OF 304.23 FEET TO A NON TANGENT INTERSECTION WITH THE ARC OF A CURVE,
CONCAVE TO THE SOUTHWEST, IN THE SOUTHERLY LINE OF VALLCO PARKWAY;
THENCE SOUTHEASTERLY ALONG THE SOUTHERLY LINE OF VALLCO PARKWAY AND
ALONG THE ARC OF SAID CURVE, TO THE RIGHT, WHOSE CENTER BEARS SOUTH
03 0120'52"WEST FROM SAID POINT OF INTERSECTION,WITH RADIUS OF 595.00 FEET AND
CENTRAL ANGLE OF 28 024'31" FEET, FOR AN AIRC DISTANCE OF 295.02.FEET TO A POINT
OF TANGENCY;
i
THENCE SOUTH 58°1.4'37' EAST ALONG THE SOUTHERLY LINE OF VALLCO PARKWAY,A
DISTANCE OF 503.70 FEET TO A POINT OF CURVATURE OF A TANGENT CURVE, CONCAVE
TO THE NORTHEAST;
THENCE SOUTHEASTERLY ALONG THE SOUTHERLY LINE OF VALLCO PARKWAY AND
ALONG THE ARC OF SAID CURVE, TO THE LEFT,WITH RADIUS OF 705.00 FEET AND
CENTRAL ANGLE OF 32°13'39", FOR AN ARC DISTANCE OF 396.55 FEET TO A POINT OF
TANGENCY;
THENCE NORTH 89 031'44" EAST ALONG THE SOUTHERLY LINE OF VALLCO PARKWAY,A
DISTANCE OF 215.03 FEET TO THE POINT OF CURVATURE OF A TANGENT CURVE,
CONCAVE TO THE SOUTHWEST;
THENCE SOUTHEASTERLY ALONG THE ARC 01=SAID CURVE,TO THE RIGHT,WITH
RADIUS OF 25.00 FEET AND CENTRAL ANGLE OF 90 000'00" FOR AN ARC DISTANCE OF
39.27 FEET TO A POINT OF TANGENCY;
1 OF 3
I
THENCE SOUTH 00 028'16" EASTALONG THE V/EST LINE OF TANTAU AVENUE, A
DISTANCE OF 277..00 FEET TO A POINT OF CURVATURE OF A TANGENT CURVE, CONCAVE
TO THE NORTHWEST;
THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE, TO THE RIGHT,WITH
RADIUS OF 50.00 FEET AND CENTRAL ANGLE i:)F 90°00'00"FOR AN ARC DISTANCE OF
78.54 FEET TO A POINT OF TANGENCY;
THENCE SOUTH 89 031'44"WEST ALONG THE NORTH LINE OF STEVENS CREEK
BOULEVARD,A DISTANCE OF 304.37 FEET TO THE POINT OF CURVATURE OF A TANGENT
CURVE, CONCAVE TO THE SOUTH, i
THENCE WESTERLY ALONG THE NORTH LINE OF STEVENS CREEK BOULEVARD,,AND i
ALONG THE ARC OF SAID CURVE, TO THE LEFT,WITH RADIUS OF 2000.00 FEETAND
CENTRAL ANGLE OF 4 057'49 FOR AN ARC DISTANCE OF 173.26 FEET TO A TANGENT
INTERSECTION WITH THE ARC OF A REVERSE CURVE, CONCAVE TO THE NORTHWEST;
THENCE WESTERLY ALONG THE NORTH LINE OF STEVENS CREEK BOULEVARD,AND
ALONG THE ARC OF SAID CURVE, TO THE RIGHT WITH RADIUS OF 2000.00 FEET AND
CENTRAL ANGLE OF 4 057'49" FOR AN ARC DISTANCE OF 173.26 FEET A POINT OF
TANGENCY;
THENCE SOUTH 8,9031,44"WEST ALONG THE NORTH LINE OF STEVENS CREEK
BOULEVARD., A DISTANCE OF 419.21 FEET;
THENCE SOUTH 89 036'00 WEST ALONG THE NORTH LINE OF STEVENS CREEK
BOULEVARD,A DISTANCE OF 392.96 FEET TO THE POINT OF BEGINNING.
CONTAINING 814,600 SQUARE FEET OR 18.70 ACRES,, MORE OR LESS.
EXCEPTING THEREFROM THE UNDERGROUND WATER WITH NO RIGHT OF SURFACE i
ENTRY AS GRANTED TO CALIFORNIA WATER COMPANY, BY DEED RECORDED
DECEMBER 7, 1987 IN BOOK K381 OF OFFICIAL. RECORDS, PAGE 1279.
THE LAND DESCRIBED HEREON IS SHOWN ON THE ATTACHED PLAT, EXHIBIT"A"SHEET 3
OF 3,AND IS BY REFERENCE, MADE A PART THEREOF.
February 4, 2014
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PLAT TO ACCOMPANY LEGAL DESCRIPTION EXHIBIT "A
SUAVE AS 5CAlf: 1"-200*-MAIN STREET CUPERTINO
'R;0'0: PROPERTY BOUNDARY
936 E.Duane Avenue I Sunnyvale,CA 94085 1 P.408-636.0900 1 F.408.636.0999 1 www.sandis.net 3
NQ: CUPERTINO, CALIFORNIA
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SUNNYVALE ROSEVILLE OAKLAND 212097
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"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.
Main Street Cupertino
to the City of Cupertino, a governmental agency, is hereby accepted by the order of the
Public Works Director, and the grantee consents to recordation thereof by its duly
authorized officer.
Dated:April 8, 2014
Andrea Sari/6"S
Senior Office A";sistant