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14-108 Stormwater Management Facilities Operation and Maintenance Agreement for 10097 S. Blaney Ave APN 369-03-008 DOCUMENT: 22628165 — -- -pages: 10 Fees. No Fees RECORDING REQUESTED BY: Taxes. . . Copies. . City of Cupertino _ AMT PA I D REGINA ALCOMENDRAS RDE # 025 WHEN RECORDED,MAIL TO: SANTA CLARA COUNTY RECORDER 6/23/2014 Recorded at the request of 2: 14 PM City Clerk's Office C i t y 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 APN 369--03-008 10097 S. Blaney Ave., Cupertino, CA 95014 Lake Biltmore Apartments, a California limited partnership Original iol O For Fast Endorsement o ` a 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 APN 369-03-008 10097 S. Blaney Ave., Cupertino, CA 95014 THIS STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTENANCE AGREEMENT ("AGREEMENT") is made and entered into this 11' *day of S✓v%�L , 2014, by Lake Biltmore Apartments, a California limited partnership, (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, 200 (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 BKF Engineers and dated July 31, 2013, which plans and any amendments thereto, are on file with the FINAL -1- 1/06/14 t 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: 1. Covenants Running With the Land; Pronerty 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 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 perform in an adequate manner and are in compliance with the ORDINANCE, the Stormwater Management Plan and any amendments thereto approved FINAL -2- 1/06/14 by the City. 5. Failure to Perform Required Facility Rep tirs 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 FACILIT'I:ES 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 obligc-itions 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- 1/06/14 e l 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,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 � a Executed the day and year first above written. LAKE BILTMORE APARTMENTS, a California limited partnership By: SUNSET RIDGE DEVELOPMENT CO., INC, a California Co poration, its general partner By: -- Name: Jonathan o Title: Vice Pre(edg (Notary acknow ent to be attached) CITY OF CUPERTINO By: Y Name: Title: FINAL -5- 1/06/14 ''i111f UA LEGAL DESCRIPTION Real property in the City of Cupertino, County of Santa Clara, State of California, described as follows: PARCEL 1, AS SHOWN ON THAT CERTAIN PARCEL MAP FILED FOR RECORD IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA ON APRIL 20, 1971, IN BOOK 282 OF MAPS PAGE(S) 12. EXCEPTING THEREFROM THE UNDERGROUND WATER RIGHTS, AS CONVEYED TO CALIFORNIA WATER SERVICE COMPANY, A CALIFORNIA CORPORATION, BY DEED RECORDED JUNE 41 1971 IN BOOK 9359, PAGE 727 OF OFFICIAL RECORDS. APN: 369-03-008 ARB: 371-06-031 a CALIFORNIA ALL-PURPOSE ACKNOWLE:®GMENT CIVIL CODE 1189 State of California County of wpatap On k)4rb.N -5,- before me, Ste- P.,c3aC Date Here Insert Name and Title of the O icer personally appeared pq: o S 4 Name(s)of Signer(s) 4 who proved to me on the basis of satisfactory evidence to be the perNrumeent whose name subscribed to the within and ac owledged to me that executed the same in 4 eir au orized capacity(i , and that by t� GZ0erAtr& signature on e instrument the person or the ent ty upon behalf of which the LEANN L.SLATER per,son(�acted, executed the instrument. Commission#t 1991577 Notary Public-California Z i '`� San Mateo County a I CE.rtify under PENALTY OF PERJURY under the My Comm. Ex Tres Oct 15,20.16 t laws of the State of California that the foregoing � .l S " paragraph is true and correct. t WITNESS my hand f ' I s Signature: Place Notary Seal Above Signature of Notary Public OPTIOW 1 (� 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: 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): t! ❑ Individual ❑ Individual jgla ❑ Partner — ❑Limited ❑General Top of thumb here ❑ Partner — ❑Limited ❑General Top of thumb here ❑ Attorney in Fact ❑Attorney in Fact ❑ Trustee ❑Trustee ❑ Guardian or Conservator ❑Guardian or Conservator ❑ Other: ❑Other: Signer Is Representing: Signer Is Representing: ©2010 National Notary Association-NationalNotary.org•1-800-US NOTARY(1-800-876-6827) Item#5907 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County of Sa h' JclAe /G On _ ?.-a before me, 4e4l e v�,.�' /(Jo ���iC Date �- Name and Title of the O ficer personally appeared � ,go r ale%�..7 Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person4 whose name is re subscribed to the within instrument and acknowledged to me that(jh /she/they executed the same in em/their/their authorized capacity), and that by signature(K on the instrument the KIRSTEN RENEE SOU- - - person, or the entity upon behalf of which the Commission # 1906898 person(4 acted, executed the instrument. z L'-a�_ Notary Public -California D I certify under PENALTY OF PERJURY under the laws Z '"' Santa Clara County - of the State of California that the foregoing paragraph My Comm. Expires Oct 4, 2014 is true and correct. WITNESS my hand and official seal. c Place Notary Seal Above Signature: jV Signature of Notary P is OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: �i-��drr Document Date: Tutee /I/ 1�_&/y 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: ©2013 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY(1-800-876-6827) Item #5907 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 Lake Biltmore Apartments, a California limited partnership 10097 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 . B Y Gam!' Andrea San t/ s Senior Office Assistant City of Cupertino