19-147 Maintenance Agreement, Apple Park, APN 316-06-061, 316-06-062, 316-06-063, 316-06-064, 316-06-065, 316-07-049 24283594
Regina Alcomendras
Santa Clara County - Clerk-Recorder
09/18/2019 02:21 PM
Titles: 1 Pages: 19
RECORDING REQUESTED BY: Fees: 0.00
Taxes: 0
Total: 10,00
City of Cupertino
WHEN RECORDED,MAIL TO:
City Clerk's Office
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
MAINTENANCE AGREEMENT
Apple Park
APN 316-06-061, 316-06-062, 316-06-063, 316-06-064, 316-06-065, & 316-07-049
I Original
0 For Fast Endorsement
a
RECORDED AT THE REQUEST OF: )
City of Cupertino )
WHEN RECORDED RETURN TO: )
City Clerk's Office )
City of Cupertino )
10300 Torre Avenue )
Cupertino,CA 95014-3255 )
SPACE ABOVE FOR RECORDER'S USE ONLY
MAINTENANCE AGREEMENT
FOR NON-STANDARD AND PRIVATE FACILITIES
Apple Park
APN 316-06-061,316-06-062,316-06-063,316-06-064,316-06-065 & 316-07-049 j
THIS MAINTENANCE AGREEMENT ("Agreement") is made and entered into this
° day of August 2019, by Campus Holdings, Inc. ("Declarant"), in its capacity as a wholly
owned subsidiary of Apple Inc., and the City of Cupertino("City").
RECITALS:
The following recitals are a substantive portion of this Agreement:
A. The real property and improvements that comprise Apple Park are located at One Apple
Park Way ("Project") within the City of Cupertino ("City"), County of Santa Clara, State of
California. A legal description of the real property upon which the Project is located is attached
hereto as Exhibit"A".
B. As set forth, the provisions of this Agreement shall run with the Project and be binding j
upon all owners, successors and assigns of the Project, or any portion thereof until such time that
all of the Non-Standard Facilities(as defined below)installed by the Declarant have been removed
from certain real property owned by the City. For purposes of this Agreement, "Non-Standard
Facilities" shall refer to all facilities installed by or on behalf of Declarant which may not strictly
comply with the City's standard specifications and details. Landscaping and irrigation facilities I
located within the roadway medians and along the sides of the roads,between the face of curb and
the limits of the right of way, are considered Non-Standard Facilities for the purposes of this
agreement. The locations of Non-Standard Facilities are depicted on Exhibit`B"attached hereto.
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C. The purpose of this Agreement is to specify the maintenance, repair and replacement
responsibilities of Declarant and the City of certain improvements for the Project along the
1
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frontages of Wolfe Road,Homestead Road,Pruneridge Avenue,Tantau Avenue,and adjacent areas
as depicted on Exhibit`B".
NOW, THEREFORE the parties hereto agree as follows:
1. 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 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".
2. Responsibility for Cost of Repair, Replacement and Maintenance: Declarant, shall, at its
sole cost and expense,maintain,repair and replace the Non-Standard Facilities depicted on Exhibit
"B". Where encroachment permits were issued for the installation of Non-Standard Facilities, the
Declarant shall be responsible for complying with the conditions of the permit. The Non-Standard
Facilities shall not include any standard public improvements installed by or on behalf of Declarant,
including all sidewalks, adjacent to the Project, which the City shall remain responsible for
maintaining, replacing and repairing ("Excluded Facilities"). Declarant's obligations under this
Agreement shall not include maintaining, repairing or replacing any of the Excluded Facilities.
Specific Non-Standard Facilities include the following:
• Irrigation(within the medians and the Frontage Area of the Project(as defined below)all
as identified on Exhibit`B");
• Landscaping(within the medians and the Frontage Area of the Project all as identified on
Exhibit`B");
• Calabazas Creek Trail facilities along the Frontage Area of the Project, and south along
Tantau Avenue to Vallco Parkway, and along Vallco Parkway from Tantau Avenue to
Calabazas Creek;
• Non-standard pavement, including non-standard surface treatments;
• Private sanitary sewer clean-out facilities located within the sidewalk on the west side of
Tantau Avenue,north of Pruneridge Avenue as identified on Exhibit"B";
• Non-standard paints used on City owned traffic signal and street light poles; i
• All trash capture facilities attached to City storm drain facilities located adjacent to the
Project,and as further as identified on Exhibit"A';
• All private electrical and fiber facilities that serve the Project;
• Non-standard lighting facilities, including the LED strip lighting installed on the Tantau
Avenue bridge that crosses over Interstate 280; and
• Any non-standard storm drain facilities that serve the Project, including pipes in the right
of way that are not made of reinforced concrete materials or which are smaller in diameter
than 12", including the 6" parallel storm drain lines that were constructed on Tantau
Avenue.
3. Definitions of Repair, Replacement and Maintenance: The repair, replacement and
maintenance to be undertaken and performed by Declarant under this Agreement shall include all .
work necessary to maintain the Non-Standard Facilities in good order and repair and in a functional
condition under all weather conditions. The Frontage Area of the Project shall be maintained to
the standards,specifications and conditions to which they were originally constructed as evidenced
by plans and specifications on file with the City of Cupertino and/or provided to Declarant. All
work required under this Agreement shall be performed by qualified individuals or contractors.
The "Frontage Area of the Project" is that area located on the portion of the City's property that
abuts and fronts the Project, along Wolfe Road, Homestead Road, Pruneridge Avenue and Tantau
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Avenue and the campus accessory buildings along Tantau Avenue to the face of curb line, and the
roadway medians located adjacent to the Project, as shown more specifically on Exhibit`B".
4. Decisions Regarding Performance of this Agreement: Declarant shall inspect and evaluate
the Non-Standard Facilities on a regular basis, but not less than twice yearly, and shall decide
whether any maintenance, replacement or repair is required. Declarant shall work diligently to
correct any deficiencies. The City reserves the right to inspect and evaluate the Non-Standard
Facilities located in the Frontage Area of the Project to confirm that Declarant is in compliance
with its obligations under this Agreement. The City shall notify Declarant in writing if the
condition of any of the Non-Standard Facilities in the Frontage Area of the Project do not conform
to the standards and requirements under this Agreement, and to specify the deficiencies and the
actions required to be taken by Declarant to cure such deficiencies. Upon notification of any
deficiency, Declarant shall have thirty(30)days from the date of receipt of notice within which to
cure or commence to cure the deficiency. If the written notification states that the problem is urgent
and relates to public health and safety, then Declarant shall have twenty-four(24) hours to rectify
the problem. Following all applicable notice and cure periods,the City reserves the right to close {
portions of public right way or to perform any applicable maintenance,replacement or repair work
to the Non-Standard Facilities in the Frontage Area of the Project reasonably necessary to ensure
public health and safety.
5. Indemnity: Declarant shall, to the fullest extent allowed by law, defend, indemnify, and
hold harmless the City and its officers,officials,agents,employees and volunteers from and against 1
any liability, claims, actions, causes of action or demands whatsoever against any of them,
including any injury to or death of any person or damage to property or other liability of any nature,
whether physical, emotional, consequential or otherwise, arising out, pertaining to, or related to
Declarant or Declarant's employees, officers, officials, agents or independent contractors
performance of the obligations under this Agreement in the Frontage Area of the Project as
delineated on Exhibit `B". These costs and expenses shall include reasonable attorneys' fees of
counsel of City's choice, expert fees and all other cost and fees of litigation. This indemnity shall
not include any claims, liabilities, actions, causes of action, and damages to the extent arising out
of the active negligence or willful misconduct of the City's employees, agents, representatives, j
contractors,vendors or consultants.
6. Insurance Requirements: Declarant shall not commence work under this Agreement until
it has obtained or caused its contractors to produce an insurance certificate evidencing compliance
with the insurance requirements set forth in Exhibit"C", attached hereto.
7. Notices:All notices,demands, requests or approvals to be sent pursuant to this Agreement
shall be made in writing, and sent to the Parties at their respective addresses specified below or to
such other address as a Party may designate by written notice delivered to the other parties in
accordance with this Section. All notices shall be sent by: (a) personal delivery, in which case
notice is effective upon delivery; (b)certified or registered mail,return receipt requested, in which
case notice shall be deemed delivered upon receipt if delivery is confirmed by a return receipt; (c)
nationally recognized overnight courier, with charges prepaid or charged to the sender's account, ;
in which case notice is effective on delivery if delivery is confirmed by the delivery service; or(d)
postage prepaid registered or certified mail, in which case notice shall be deemed delivered on the I
second business day after the deposit thereof with the U.S. Postal Service. j
To Declarant: c/o Apple Inc. j
One Apple Park Way, M/S 18-RE
Cupertino, CA 95014 j
3
Attention: Real Estate&Development
To the City: Cityof Cupertino
1
p
10300 Torre Avenue
Cupertino, CA 95014
Attention: Public Works Director
With a copy to: City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
Attention: City Attorney
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If the City reasonably determines that an emergency response is required, the City shall
immediately give verbal notice to Declarant, telephone (408) 974-6970 (Apple FSC Call Center)
24 hours a day, 7 days per week, with a follow-up written confirmation by personal delivery or
electronic mail(maops@apple.com)on the same day verbal notice is given,or on the next business
day if verbal notice is not given during business hours.
8. Attompy's Fees: In the event that any party institutes legal action or arbitration against j
the other to interpret or enforce this Agreement, or to obtain damages for any alleged breach, the
prevailing party in the action or arbitration shall be entitled to reasonable attorneys' or arbitrators'
fees in addition.to all other recoverable costs, expenses and damages. Declarant is required to
comply with the government claims procedures prior to instituting legal action against the City.
9. Further Documents: The parties covenant and agree that they shall execute further
documents and instructions as shall be necessary to fully effectuate the terms and provisions of this
Agreement.
10. 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,
which are not fully expressed herein.
11. 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 which can be separated from the invalid, unenforceable provisions shall, nevertheless,
continue in full force and effect.
I
12. 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.
13. Recordation: It is anticipated that this Agreement shall be recorded and shall be executed
and acknowledged in proper recordable form.
14. Amendment: This Agreement may be amended in whole or in part only by mutual written
agreement. Any amendment shall be recorded in Santa Clara County,California.
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Executed the day and year first above written.
DECLARANT:
CAMPUS HOLDINGS, INC.
By: (notary acknowledgement attached)
.1
Title:
CITY:
CITY OF CUPERTINO
By:
Name: t ,er—
Title: �'�! � I�GCG►-c-•
Approved as to Form
City Attorney
5
A notary public or other officer completing this certificate verifies only the identity of
the individual who signed the document to which this certificate is attached, and not
the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
ss.
COUNTY OF SANTA CLARA )
On August 9, 2019 before me, Erika Mego, Notary Public, personally
appeared Jeff Schmidt who proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person, or the entity upon
behalf of which the person 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.
,5 : f ERIKAMEGo
Notary Public-California
Notary Publi W Santa Clip County
i
Commission#2242095
My Comm.Expires May 11,2022
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document
to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document.
State of California
1 1
County of r A C[a r o, J}
On 7 L�LtS� c 7. �1`I before me, �(�r�^ c�� ��A-C,
Date Here Insert Name and Title of the 6fficer
personally appeared
Name(s)of Signer(s)
who proved to me on the basis of satisfactory evidence to be the pi rs (s) whose am.(s) (Ware subscribed
to the within instrument and acknowledged to me that he/�/they executed the same in his/Edr/their
authorized a a ft�(ies), and that by his/Ke_P/thei s.ig.natur (s) on the instrument the p.ecscr(s), or the entity
upon behalf of which the er njs) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
*My
LAURENSAPUOAR paragraph is true and correct.
Notary Public•California
Santa Santana#22 71 WITNESS my hand and official seal.
Commission M 2247155 Comm.Expires Jun 22,2022
Signatur
Place Notary Seal and/or Stamp Above Signature of Notary Public
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:
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):
❑ Partner— ❑ Limited ❑ General ❑ Partner— ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact ❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian of Conservator ❑ Trustee ❑ Guardian of Conservator
❑ Other: ❑ Other:
Signer is Representing: Signer is Representing:
02017 National Notary Association
.. 1.Y K 45, �'
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EXHIBIT"A"
Legal Description of Real Property
Real property in the City of Cupertino, County of Santa Clara, State of California, described as
follows:
PARCELS 1,2,3, 4 AND 5,AS SHOWN ON THAT CERTAIN PARCEL MAP FILED
DECEMBER 19, 2014 IN BOOK 879 OF MAPS,PAGES 19-25, SANTA CLARA COUNTY
RECORDS. l
EXCEPTING FROM A PORTION OF PARCEL 1, THE UNDERGROUND WATER RIGHTS,
WITH NO RIGHT OF SURFACE ENTRY,AS CONVEYED TO CALIFORNIA WATER j
SERVICE COMPANY,A CALIFORNIA CORPORATION, BY DOCUMENT RECORDED j
OCTOBER 19, 1981 IN BOOK G400, PAGE 445 OF OFFICIAL RECORDS. 1
d
ALSO EXCEPTING FROM PARCEL 2,THE UNDERGROUND WATER RIGHTS, WITH NO
RIGHT OF SURFACE ENTRY,AS CONVEYED TO THE CITY OF CUPERTINO,A
MUNICIPAL CORPORATION, BY DOCUMENT RECORDED OCTOBER 7,2011 AS
INSTRUMENT NO. 21352900 OF OFFICIAL RECORDS.
ALSO EXCEPTING FROM PARCEL 3, THE UNDERGROUND WATER RIGHTS, WITH NO
RIGHT OF SURFACE ENTRY,AS CONVEYED TO THE CITY OF CUPERTINO,A
MUNICIPAL CORPORATION,BY DOCUMENTS RECORDED OCTOBER 7, 2011 AS
INSTRUMENT NO. 21352899 AND JANUARY 26,2012 AS INSTRUMENT NO.21511710,
BOTH OF OFFICIAL RECORDS.
ALSO EXCEPTING FROM A PORTION OF PARCEL 5,THE UNDERGROUND WATER
RIGHTS,WITH NO RIGHT OF SURFACE ENTRY,AS CONVEYED TO THE CITY OF
CUPERTINO, A MUNICIPAL CORPORATION, BY DOCUMENT RECORDED JANUARY
17, 1989 IN BOOK K820,PAGE 1180 OF OFFICIAL RECORDS.
APN: 316-06-061 (Affects a portion of Parcel 1), 316-07-049(Affects a portion of Parcel 1), 316-
06-062(Affects Parcel 2), 316-06-063 (Affects Parcel 3), 316-06-064(Affects Parcel 4)and 316-
06-065 (Affects Parcel 5)
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EXHIBIT"B"
Non-Standard Facilities
III
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Exhibit "B-0"
Non-Standard Facilities
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EXHIBIT"C"
Insurance Requirements
CHI shall procure and maintain for the duration of the agreement, insurance against claims
for injuries to persons or damages to property which may arise from or in connection with
the performance of the obligations in this Agreement by CHI, its agents, representatives,
employees or contractors.
MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
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1. Commercial General Liability(CGL): Insurance Services Office (ISO)Form CG
00 01, or its substantial equivalent, on an "occurrence" basis, including coverage
for liability arising from CHI's or its contractor's acts or omissions, including
bodily injury (including death), property damage, personal and advertising injury,
contractual liability, products and completed operations, and damage to leased
premises coverage,with limits of at least$2,000,000 per occurrence and$4,000,000
in the aggregate.
a Additional Insured coverage under CHI's policy shall be "primary" and will not
seek contribution from City's insurance/self-insurance, and shall be at least as
broad as ISO CG 20 0104 13 or its substantial equivalent.
h The limits of insurance required may be satisfied by a combination of primary
and umbrella or excess insurance, provided each policy complies with the
requirements set forth in this Contract. Any umbrella or excess insurance shall
contain or be endorsed to contain a provision that such coverage shall also apply
on a primary and non-contributory basis for the benefit of City before the City's
own insurance or self-insurance shall be called upon to protect City as a named
insured.
2 Automobile Liability: ISO Form CA 00 01, or its substantial equivalent, covering
all owned, non-owned and hired vehicles, with limit no less than $1,000,000 per
accident for bodily injury and property damage.
3. Workers' Compensation: As required by the State of California, with
Statutory Limits, and Employer's Liability Insurance of no less than $1,000,000
per accident for bodily injury or disease, or as otherwise required by statute. If a
contractor is self-insured,it must provide a Certificate of Permission to Self-Insure,
duly authorized by the DIR.
El
N/A if box checked(Contractor provides written verification it has no employees).
8
4 Professional Liability for any design or engineering or other professional work
under this agreement with limits no less than $2,000,000 per occurrence or claim,
and $2,000,000 aggregate. CHI may satisfy this requirement by requiring any
contractor performing such design, engineering or other professional work to
maintain such insurance.
5. Builder's Risk. If, and only if, CHI is performing construction, Course of
Construction insurance utilizing an"All Risk" (Special Perils) coverage form or its
substantial equivalent, with limits equal to the completed value of the work and no
coinsurance penalty provisions.
f
OTHER INSURANCE PROVISIONS
The insurance policies are to contain, or be endorsed to contain,the following provisions:
Additional insured Status
The City of Cupertino, its City Council,officers,officials,employees,agents, servants and
volunteers are to be covered as additional insureds on the CGL policy with respect to
liability arising out of the work under this agreement, including materials, parts, or
equipment furnished. Endorsement of CGL coverage shall be at least as broad CG 20 10,
CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 as applicable.
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Primary Coverage
For any claims related to this agreement, CHI's insurance coverage shall be "primary"
and at least as broad as ISO CG 20 01 04 13 with respect to City, its officers, officials,
employees and volunteers, and shall not seek contribution from City's insurance. If the
limits of insurance are satisfied in part by Umbrella/Excess Insurance, the
Umbrella/Excess Insurance shall contain or be endorsed to contain a provision that such
coverage shall also apply on a"primary and non-contributory"basis for the benefit of City.
Notice of Cancellation
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Each insurance policy required shall provide that coverage shall not be canceled except on
thirty (30) days-notice. CHI shall provide thirty (30) days notice of such cancellation to
the City. In the event of cancellation, CHI shall promptly replace such insurance so no
lapse in coverage occurs.
Waiver of Subrogation
Each required policy must include an endorsement providing that the carrier agrees to
waive any right of subrogation it may have against City. CHI agrees to waive rights of
subrogation which any insurer of CHI may acquire from CHI by virtue of the payment of
any loss. CHI agrees to obtain any endorsement that may be necessary to affect this waiver
of subrogation. The Workers' Compensation policy shall be endorsed with a waiver of
subrogation in favor of the City for all work performed by CHI, its employees, agents and
subcontractors.
9
Acceptability of Insurers
Insurance must be issued by insurers authorized to do business in the State of California,
and each insurer must have an A.M. Best's financial strength rating of"A" or better and a
financial size rating of"VII" or better.
Verification of Coverage
Contractor shall furnish the City with original certificates evidencing coverage required by
this contract. All certificates are to be received and approved by the City before work
commences.
Subcontractors
CHI shall require and verify that all subcontractors maintain insurance meeting all the
requirements stated herein, and CHI shall ensure that City is an additional insured on the
CGL insurance required from subcontractors. For CGL coverage subcontractors shall
provide coverage with a form at least as broad as CG 20 38 04 13.
Special Risks or Circumstances
City reserves the right to modify these requirements, based on the nature of the risk, prior
experience, insurer, coverage, or other circumstances.
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Self-Insurance
So long as CHI, or its parent company Apple Inc., maintains an audited net worth of
$100,000,000, CHI may satisfy the insurance requirements in this Exhibit C through a
program of self-insurance, self-insured retentions and/or deductibles; provided that CHI
shall be responsible for losses or liabilities,including the provision of a defense,that would
have been covered by a third-party insurer but for CHI's decision to self-insure such losses
or liabilities. CHI shall be responsible for payment of all self-insured retentions or
deductibles under such insurance.
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