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14-107 Stormwater Management Facilities Operation and Maintenance agreement, 20080 Stevens Creek Blvd, 10093 & 10095 S. Blaney Ave Y DOCUMENT, - - 22628167 --- �------ -- - __ - t I Pages 10 � RECORDING REQUESTED BY: Fees. . . . No Fees Taxes. . . Jill Copies. . City bf Cupertino AMT PA I D�-T WHEN RECORDED,MAIL TO: RE(a I NA ALCOMENDRAS SANTA CLARA COUNTY RECORDER RDE # 025 u Recorded at the request of 6/23/2014 City Clerk's Office 15 PM City of Cupertino 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 20080 Stevens Creek Boulevard, 10093 S. Blaney Ave. & 10095 S. Blaney Ave., Cupertino, CA 95014 APN 369-03-009 Preg Biltmore, a California limited partnership �i Original 0 For Fast Endorsement r s ,,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 Stormwater Management Facilities Operation and Maintenance Agreement with 20080 Stevens Creek Boulevard, 10093 Blaney Ave. & 10095 S. Blaney Ave., 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: June 19, 2014 By: ,. ,. irsten Squara Deputy City_Clerk RECORDED AT THE REQUEST OF ) and ) WHEN RECORDED RETURN TO: ) SPACE ABOVE FOR RECORDER'S USE ONLY STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTEENANCE AGREEMENT APN 369-03-009 20080 Stevens Creek Blvd, 10093 S. I1laney Ave. & 10095 S. Blaney Ave., Cupertino, CA 95014 THIS STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTENANCE AGREEMENT ("AGREEMENT") is made and entered into this I'2 day of 2014, by Preg Biltmore, a California limited partnershi-), (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 stone 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 stonnwater conditions on both the PROPERTY and adjacent lands. D. To minimize adverse impacts due to these, anticipated changes in existing stone and surface water flow conditions, the COVENANTOR is required by the CITY to build and maintain, at COVENANTOR's expense, stonnwater management facilities ("FACILITIES"), more particularly described and shown in the Stornnwater Management Plan prepared by BKF FINAL -1- 1/06/14 r Engineers and dated July 31, 2013, 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 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: 1. Covenants Running With the Land; PropertySubject 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 Stonmwater 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 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 perfonn in an adequate manner and are in compliance with the FINAL -2- 1/06/14 i 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 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 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 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. FINAL -3- 1/06/14 . 1 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. 1.0. 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 arisen 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- 1/06/14 Executed the day and year first above written. PREG BILTMORE, a California limited partnership By: SUNSET RIDGE DEVELOPMENT CO., INC, a California orporatio general partner By: _ Name: Jonathan os Title: Vice Presi en (Notary acknowl dg ent to be attached) n/1 t4 CITY OF C RT O By: _ Name: - Title: c_r° FINAL -5- 1/06/14 txhibit A Real property in the City of Cupertino,County of Santa Clara, State of California, described as follows: Being all of Parcel One of the lands described in that certain Grant Deed, conveyed from Robert McDonald Erving and Elizabeth Doran (formerly Elizabeth.D. Erving), trustees of The Robert McDonald Erving and Elizabeth D. Erving Trust to PREG BILTMO.-RE, a California limited partnership, recorded February 29, 2012 as Document No.. 21555832, Official Records of Santa Clara County and being also all of Parcels 1, 2 and 3, as said Parcels are described in that certain Grant Deed; conveyed from Ronald W. Lackey, Trustee of the Lackey Family Trust dated December 20, 1993, Betty Lackey, Trustee of the Lackey Family Trust dated December 20, 1993, Bill Mendenhall, Trustee of the Bill Mendenhall 1999 Trust, and DPT Schmidt Trust, a Nevada corporation to PREG BILTMORE, a. California limited partnership, recorded October, 03, 2011 as Document No. 21345978, Official Records of said County, more particularly described as follows: BEGINNING at the northwesterly corner of Parcel One of said lands of�PREG BILTMORE (Doc.. 21555832),said corner being also a point on the southerly line of Stevens Creek Boulevard, as said corner and said southerly line are shown on that certain Record of Survey, filed for Record on September 10, 1968 in Book 242 of Maps at Page 19,Records of Santa Clara County; Thence leaving said comer and along said southerly line of Stevens Creek Boulevard, North 89°54'00" East 351.51 feet to the northeasterly corner of Parcel 1 of said lands of PREG BILTMORE (Doc. 21.345978); Thence leaving said comer and along the easterly line of said Parcel 1 of said lands (Doc. 21345978), South, 160.00 feet to an angle point thereof; Thence leaving said point and along the northerly line of said Parcel 1 of said lands (Doc.. 21345978), North 89054'00" East, 125.00 feet to the westerly line of Blaney Avenue, as said line is shown on said Record of Survey(242 M 19); Thence along said westerly line of Blaney Avenue, South, 178:65 feet to the southeasterly corner of' Parcel 3 of'said lands of PREG BILTMORE(Doc. 21345978); Thence leaving said corner and along the southerly line of said Parcel 3 of said lands (Doc. 21345978), South 8054'00" West, 476.51 feet to the southwesterly corner of said Parcel One of said lands (Doc. 21555832); Thence leaving said corner and along the westerly line of said Parcel One of said lands (Doc.. 21345978), North,.338.65 feet to the Point of BEGINNING. Parcel A contains an area of 3.245 acres,more or IeSS. f CALIFORNIA ALL-PURPOSE ACKNOWL EEDGMENT CIVIL CODE§ 1188 State of California 4 County of J 40 A.ATVtO _ On AVdt___j -� before me, ..a PQb L Date Here Insert Name and Title of the Offiber personally appeared Xy� Name(s).of.Signer.(s) who proved to me on the basis of satisfactory (` evidence to be the person whose name i - -- (; subscribed tot ithin ins rument and ackno edged to me that ey executed the same in (� �enthtq dbl6orized capacity, and that by LEANN L.SLATER Lk #h signature on the instrument the or the ent upon behalf of which the Commission# 1991577 p rson y p Notary Public-California i perso acted, executed the instrument. z Y San Mateo County n My Comm.Expires Oct 15,2016 J W"WWWWWWWWWWW 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 o 1 al. Signature: Place Notary Seal Above Signature of Notary Public OPTION44 L 4 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. 4 Description of Attached Document Title or Type of Document: _ ) Document Date: _ Number of Pages: ) Signer(s) Other Than Named Above: _ Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Corporate Officer — Title(s): ❑Corporate Officer Title(s): ❑ Individual ❑ Individual ❑ Partner — ❑Limited ❑General Top of thumb here ❑ Partner — ❑ Limited ❑General Top of thumb here ❑ Attorney in Fact El Attorney in Fact k ❑ Trustee ❑Trustee ❑ Guardian or Conservator ❑Guardian or Conservator ❑ Other: ❑Other: Signer Is Representing: Signer Is Representing: ©2010 National Notary Association•National Notary.org•1-800-US NOTARY(1-800-8;6-6827) Item#5907 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County of Sa a 4--" On 1"e- �� . 2 o t q before me, 4 xeiiez rq C/a e-u"-pt ./V o&-ev lo✓ Date Name and Title of the Officer personally appeared �� �+ A o e-ale-, Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person whose name(j�ac are subscribed tot ithin instrument and acknowledged me that(�Ahe/they executed the same in er/their authorized capacity(i , and that by h er/their signatures on the instrument the KIRSTEN RENEE SOUARCIA person(p, or the entity upon behalf of which the Commission # 1906898 z persono acted, executed the instrument. z Notary Public-California z - D I certify under PENALTY OF PERJURY under the laws Santa Clara County My Comm. Expires Oct 4,2014 of-the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal Above Siglnature: Signature of Notary P lic OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this faun to an unintended document. Description of Attached Document 6'�G�i�-f Document Date: Tutee /2- Zvf'�{ Title or Type of Document: t Number of Pages: S Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Corporate Officer—Title(s): ❑ Corporate Officer—Title(s): ❑ Partner— ❑ Limited ❑ General ❑ Partner— ❑ Limited ❑ General ❑ Individual ❑Attorney in Fact ❑ Individual ❑Attorney in Fact ❑Trustee ❑ Guardian or Conservator ❑Trustee ❑ Guardian or Conservator ❑ Other: ❑ Other: Signer Is Representing: Signer Is Representing: 0 2013 National Notary Association • www.NationalNotary,.org 9 1-800-US NOTARY(1-800-876-6827) Item #5907