20-060 Stormwater Management Facilities Operation and Maintenance Agreement, APN 316-06-061, 316-07-049 RECORDING REQUESTED BY: 24424905
Regina Alcomendras
City of Cupertino Santa Clara County - Clerk-Recorder
03/09/2020 12:29 PM
WHEN RECORDED,MAIL TO: Titles: 1 Pages: 21
Fees: 10.00
0.00
Taxes: 0
City Clerk's Office Total :
yCupertino11 � �s 'I " ��N �'I�LrG�'�'M`NCO,
City of
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
Cupertino, CA
APN 316-06-061
APN 316-07-049
Ef Original
71 Conformed Copy
Space above this line for Recorder's use.
STORMWATER MANAGEMENT FACILITIES OPERATION
AND MAINTENANCE AGREEMENT
APB' 3146 - Or. __ 0(,1 Bt 316 " c-1 04 q
This STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTENANCE
AGREEMENT("Agreement")is made and entered into this 20th day of November, 2019,by Apple
Inc., a California corporation ("Covenantor") and the City of Cupertino, a municipal corporation
("City"). Covenantor and City are referred to collectively herein as the "Parties" and each
individually as a"Party."
RECITALS:
i
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 Watershed Protection
Ordinance, Ordinance No. 1571, effective October 15, 2003 (as currently in effect and as it may
hereafter be amended, the"Ordinance").
B. The Covenantor is the owner of a certain real property more particularly described in
Exhibit A attached hereto ("Property").
C. - The Covenantor has constructed 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 and trash capture facilities ("Facilities") as more
particularly shown in Exhibit B and described in the Stormwater Management Plan prepared by
Arup North America Ltd. dated February 5, 2014, which plan, together with any and all
-I-
amendments, including future amendments, thereto (collectively, the "SWMP"), 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 the SWMP, and subject to execution of this Agreement,has
approved the SWMP.
AGREEMENT:
NOW, THEREFORE, in consideration of the benefits received and to be received by the
Covenantor,its successors and assigns,as a result of the City's approval of the SWMP,the Parties
hereby agree as follows:
1. Covenants Running With the Land; Property Subject to Agreement. All of the Property
shall be subject to this Agreement. The Parties intend that this Agreement shall run with the land,
shall be binding on Covenantor,its successors and assigns,and all parties having or acquiring any
right, title or interest in the Property or any portion thereof, and their respective successors and
assigns, and shall inure to the benefit of the City and its successors and assigns regardless of
whether City has any ownership interest in the Property or any portion thereof or any property
adjacent thereto. Every limitation, obligation, covenant, condition, and restriction contained
herein shall be deemed to be, and shall be construed as a covenant running with the land, and in
addition, shall be construed as an equitable servitude, enforceable by any owner of any portion of
the Property against any other owner, tenant or occupant of the Property or any portion thereof.
Subject to the provisions of Section 10 below, each reference in this Agreement to Covenantor
shall mean Covenantor and its successors in interest to the Property or any portion thereof.
2. Responsibility for Installation, Operation and Maintenance. At its sole expense, the I
Covenantor shall construct, operate and perpetually maintain the Facilities in strict accordance
with: (a)the Ordinance,(b)manufacturer's recommendations where applicable,(c)the SWMP and j
any amendments thereto that have been approved by the City, and(d) all other applicable federal,
state and local laws, ordinances and regulations. Covenantor,on an annual basis, shall prepare and
deliver to the City Public Works Director, a Maintenance Inspection Report in the form attached J
hereto as Exhibit C or such other form as may be reasonably required by City from time to time. 1
The annual Maintenance Inspection Report shall identify all completed inspection and
maintenance tasks for the reporting period and shall be submitted to the City in order to verify that
inspection and maintenance of the Facilities have been conducted as required by this Agreement.
The annual report shall be submitted no later than October 15 of each year, beginning in 2019,
under penalty of perjury,to the City Public Works Director or such other member of the City staff
as directed by the Public Works Director. Covenantor shall provide in the annual report a record
of the volume of all accumulated sediment removed as a result of the treatment measure(s).
Covenantor shall conduct a minimum of one annual inspection of the Facilities before the rainy
season;this inspection shall occur between August 1 st and September 30 each year. More frequent
inspections may be required to comply with the maintenance standards. The results of inspections
shall be recorded on the Maintenance Inspection Report.
3. Facility Modifications. At its sole expense, the Covenantor shall make such changes or
-2-
modifications to the Facilities as the City Engineer may reasonably determine to be necessary or
desirable to ensure that the Facilities continue to operate as originally designed and approved. Any
changes or modifications to the Facilities may be made only with prior written authorization by
the City Engineer or his or her designee.
4. Intentionally Omitted.
5. Facility Inspections by the City. At reasonable times, after not less than forty-eight (48)
hours' prior written notice, except in the event of an immediate threat to public health and safety
in which case no prior notice shall be required, and in a reasonable manner as provided in the
Ordinance, the City, its agents, employees, contractors, and consultants shall have a reasonable
right of ingress and egress to the Facilities for the purpose of inspecting the Facilities to ensure
that the Facilities are being properly maintained,are continuing to perform in an adequate manner
(as reasonably determined by the City Engineer or his or her designee), and are in compliance
with the Ordinance, the SWMP and any amendments thereto approved by the City and all other
applicable laws. Any such inspection by the City shall be at the City's sole risk and expense,
subject to Covenantor's security protocols and otherwise consistent with City's standard
inspection procedures for similar facilities.
6. No Barriers. While this Agreement is in effect, subject to Section 3 above, Covenantor
shall not erect, nor permit to be erected, any building or structure of any kind within the areas
where the Facilities are located, nor shall Covenantor fill or excavate within the areas where the
i
Facilities are located without City's prior written consent which shall not be unreasonably
withheld, but may be conditioned upon such requirements as City Engineer determines are
reasonably necessary or desirable to ensure proper functioning of the Facilities.
7. Default and Remedies.If,following delivery of written notice from City and the expiration
of a thirty (30) day cure period (except in the event of an immediate threat to public health and
safety in which case Covenantor shall commence and complete corrective action as soon as
possible following receipt of notice from the City), Covenantor fails to correct any defect in the
Facilities in accordance with the approved design standards, the SWMP, the Ordinance, and all
other applicable state,federal,and local laws,rules,and regulations,or Covenantor otherwise fails
to comply with the maintenance and repair obligations set forth in the SWMP and this Agreement,
the City shall have the right upon delivery of forty-eight (48) hours' prior written notice (except
in the event of an immediate threat to public health and safety in which case no notice shall be
required) to enter the Property (at the City's sole risk and expense and subject to Covenantor's
security protocols) for the purposes of maintaining and repairing the Facilities at Covenantor's
expense, and Covenantor shall be obligated to reimburse City for the cost of all such work,
including, without limitation, the cost of City staff time, within thirty (3.0) days following City's
delivery of an invoice therefor,together with documentation of City's costs and expenses incurred
in connection with the performance of such work. If such costs are not paid within the prescribed
time period, the City may assess Covenantor the cost of the work, and said assessment shall be a
lien against the Property or may be placed on the property tax bill and collected as ordinary taxes
by the City. In addition to the foregoing, the City may pursue any other remedies provided under
law or in equity, including without limitation, ex parte applications for temporary restraining
-3-
orders, preliminary injunctions and permanent injunctions enjoining any such violation or
attempted violation or default, an order for specific performance,civil and criminal penalties, and
the remedies set forth in Sections 9.18.190, 9.18.230 and 9.18.250 of the Ordinance. All such
remedies shall be cumulative and not alternative.
8. Indemnity. The Covenantor shall defend, indemnify,and hold the City and its elected and
appointed officers, officials, employees, agents, representatives, contractors, vendors and
consultants (all of the foregoing, the "Indemnitees") harmless from and against any and all
claims, demands, liabilities, losses, actions, causes of action, suits, judicial or administrative
proceedings, damages for personal injury, bodily injury, death and property damage, costs and
expenses, including without limitation reasonable attorneys' fees, arbitration fees or costs, and
court costs, penalties, deficiencies, fines, orders, and damages (all of the foregoing, "Claims"),
arising out of or related to,or alleged to arise out of or be related to,the ownership, operation, use
of the Property or the construction, operation, maintenance, or failure to maintain, the Facilities,
except to the extent that any such Claim arises from the negligence or willful misconduct of the
City or any Indemnitee. Covenantor's indemnity obligations shall apply regardless of whether any
City insurance policies,self-insurance or joint self-insurance has been determined to be applicable
to such Claims and regardless of whether or not City has prepared, supplied or approved of plans
and specifications for the construction, installation, maintenance, repair or replacement of the
Facilities.
9. Insurance Requirements. Covenantor shall obtain and produce to the City's satisfaction 1
an insurance certificate and endorsements evidencing compliance with the insurance requirements
set forth in Exhibit D. attached hereto.
I
10. Obligations and Responsibilities of Covenantor. Initially, the Covenantor named above
shall be solely responsible for the performance of the obligations required under this Agreement 1
and for 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 Covenantor shall be released 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.
11. PropeM Transfer. Nothing herein shall be construed to prohibit a transfer of the Property
or any part thereof by the Covenantor to subsequent owners and assigns.
12. Termination and Release of Agreement. In the event that the City determines, in the
exercise of its sole discretion, at any future time that the Facilities are no longer required, then it
promptly shall so notify the Covenantor or its successors and/or assigns in writing, and at the
written request of the Covenantor, the City shall execute a termination and release of this
Agreement which the Covenantor shall cause to be recorded in the Official Records at
Covenantor's sole expense.
-4-
1
13. Miscellaneous.
13.1 Notices. Except as otherwise specified herein, 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 Party in accordance with this Section. All such 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 second business day after the
deposit thereof with the U.S. Postal Service.
City:
City of Cupertino
10300 Torre Ave.
Cupertino, CA 95014
Attention: Public Works Director
With copy to:
i
City of Cupertino
10300 Torre Ave.
Cupertino, CA 95014
Attention: City Attorney
Covenantor:
Apple Inc.
One Apple Park Way, MIS 18-REF
Cupertino, CA 95014
Attn: Real Estate & Development
With a copy to:
Apple Inc.
One Apple Park Way, MIS 4-D LAW
Cupertino, California 95014
Attention: Real Estate Counsel
132 Attorneys' Fees. In the event that either 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.
-5-
133 Governing Law; Venue. This Agreement shall, in all respects, be governed,
construed, applied, and enforced in accordance with the laws of the State of California without
reference to its choice of laws provisions. Any dispute related to the interpretation or enforcement
of this Agreement shall be heard in courts having jurisdiction in Santa Clara County, California.
13.4 Further Assurances. City and Covenantor shall each execute, acknowledge and
deliver to the other such other documents and instruments, and take such other actions, as either
shall reasonably request as may be necessary to fully effectuate the terms and provisions of this
Agreement.
135 Entire Agreement. This Agreement, together with the SWMP, constitutes the entire
agreement of the Parties with respect to the subject matter contained herein and supersedes all prior
written or oral agreements with respect thereto.
13.6 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 or,unenforceable provisions shall,
nevertheless, continue in full force and effect.
13.7 No Waiver. Any waiver by City of any term or provision of this Agreement must be
in writing. No waiver shall be implied from any delay or failure by City to take action on any
breach or default hereunder or to pursue any remedy allowed under this Agreement or applicable
law. No failure or delay by City at any time to require strict performance by Covenantor of any
provision of this Agreement or to exercise any election contained herein or any right, power or
remedy hereunder shall be construed as a waiver of any other provision or any succeeding breach
of the same or any other provision hereof or a relinquishment for the future of such election.
13S Recordation; Amendments. City, at Covenantor's expense, shall cause this
Agreement to be recorded in the Official Records of Santa Clara County, California ("Official
Records")promptly following execution hereof. This Agreement may be amended in whole or in
part only by mutual written agreement. Any such amendment shall be recorded in the Official
Records.
139 Relationship of Parties.Neither Covenantor nor any of its contractors,employees or
agents shall be deemed to be agents of City in connection with the performance of Covenantor's
obligations under this Agreement. Nothing in this Agreement is intended to or shall establish the
Parties as partners, co-venturers, or principal and agent with one another. City neither undertakes
nor assumes any responsibility or duty to Covenantor (except as expressly provided in this
Agreement) or to any third party with respect to the Facilities.
13.10 Headings; Construction, Statutory References. The headings of the sections and
paragraphs of this Agreement are for convenience only and shall not be used to interpret this
Agreement. This Agreement is the product of negotiation between the Parties. The language of this
Agreement shall be construed as a whole according to its fair meaning and not strictly for or against
-6-
any Party. Any rule of construction to the effect that ambiguities are to be resolved against the
drafting party shall not apply in interpreting this Agreement. All references in this Agreement to
particular statutes, regulations, ordinances or resolutions of the United States, the State of
California, or the City of Cupertino shall be deemed to include the same statute, regulation,
ordinance or resolution as hereafter amended or renumbered,or if repealed,to such other provisions
as may thereafter govern the same subject. The recitals above and exhibits attached hereto are a
substantive part of this Agreement and are hereby incorporated herein.
13.11 Permits and Licenses; Compliance with Law. Covenantor, at its expense, shall
comply with all applicable legal requirements, including all federal, state, and local laws and
regulations (including City ordinances, regulations and resolutions, and requirements of other
agencies with jurisdiction), whether or not said laws or regulations are expressly stated in this
Agreement, and obtain and maintain all necessary permits and licenses required in order to own,
operate and maintain the Facilities.
13.12 Liens. Covenantor shall pay, when due, all persons furnishing labor or materials in
connection with any work to be performed by or on behalf of Covenantor related to the Facilities.
13.13 Joint and Several Liability. If Covenantor consists of more than one person or entity,
the obligations of such persons and entities shall be joint and several.
13.14 Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original, and all of which taken together shall constitute one and
the same instrument.
I
SIGNATURES ON FOLLOWING PAGES)
i
-7-
IN WITNESS WHEREOF,the Parties have executed this Agreement as of the date first
above written.
COVENANTOR:
Apple Inc., a is corporation
By:
Name
Title: •10. i 4"i es
(Notary acknowledgment to be attached)
CITY:
City of Cupertino, a inicipal corporation
By:
Name: C840 osti
Title: Cl-r,( <N 6-/ Ct2
(Notary acknowledgment to be attached)
ATTEST:
({ors(in S va rri ,City Clerk
APPROVED AS TO FORM: j
�ae� M• '`�• ny� (' ,City Attorney
I
-8-
STATE OF CALIFORNIA ) 13 CAAt-W CP t1CG4�
COUNTY OF SANTA CLARA )
On 20, before me, Notary Public, personally
appeared ,who proved to me on the basis of sa ' actory
evidence to be the person(s) whose name(s) is/are subscribed to the wi rument and acknowledged
to me that he/she/they executed the same in his/her/their au a capacity(ies), and that by his/her/their
signature(s)on the instrument the person(s),or the upon behalf of which the person(s)acted,executed
the instrument.
I certify under PENALTY ERJURY under the laws of the State of.California that the foregoing
paragraph is true a orrect.
WITN my hand and official seal.
Signature (Seal) 1
i
STATE OF CALIFORNIA )
COUNTY OF SANTA CLARA )
On 20 before me, Notary Public, personally
appeared w roved to me on the basis of satisfactory
evidence to be the person(s) whose names) is/a subscribed to the within instrument and acknowledged
to me that lie/she/they executed the same in s/her/their authorized capacity(ies), and that by his/her/their
signature(s)on the instrument the perso ,or the entity upon behalf of which the person(s)acted,executed
the instrument.
I certify under PENALT F PERJURY under the laws of the State of California that the foregoing
paragraph is true and rrect.
WITNESS hand and official seal.
Sign re (Seal)
+ �� e
i
i
I
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 )
County of Santa Clara )
On DGCGYvxbt/ before me, Terencia Tervalon,a Notary Public, personally appeared
Kristina Raspe,who proved to me on the basis of satisfactory evidence to be the person whose naive is
subscribed to the within instrument and acknowledged to me that she executed the same in her authorized
capacity, and that by her 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.
I
WITNESS my hand and official seal.
,•,p ,ti TERENCIA TERVALON
�' s Notary Public-California
Santa Clara County
Signature ���/� �.�� (Seal) Commission#2289071
My Comm.Expires May 19,2023
i
I
I
i
CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT
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
County of Santa Clara
On Ma r�, --, ?.0 2a before me, Kirsten Squarcia ,Notary Public,
(Here insert name and title of the officer)
personally appeared X6 L-d S— le e
who proved to me on the basis of satisfactory evidence to be the person(Wwhose name(#1s/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity), and that by his/her/their signaturefA on the instrument the personA, 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.
KIR
TEN
WITNESS my hand and official seal. Notary Pub Notary
Public-Califoo rr SQUARCnia Z
Santa Clara County
Commission#225732Z
My Comm,Expires Oct 4,2022
Signature of Notary Public (Notary Seal)
ADDITIONAL OPTIONAL INFORMATION
INSTRUCTIONS FOR COMPLETING THIS FORM
Any acknowledgment completed in California must contain verbiage exactly as
DESCRIPTION OF THE ATTACHED DOCUMENT appears above in the notary section or a separate acknowledgment form must be
properly completed and attached to that document. The only exception is if a
document is to be recorded outside of California.In such instances,any alternative
(Title or description of attached document) acknowledgment verbiage as may be printed on such a document so long as the
verbiage does not require the notary to do something that is illegal for a notary in
California (i.e. certifying the authorized capacity of the signer). Please check the
(Title or description of attached document continued) document carefully for proper notarial wording and attach this form if required.
Number of Pages Document Date • State and County information must be the State and County where the document
signer(s)personally appeared before the notary public for acknowledgment.
• Date of notarization must be the date that the signer(s)personally appeared which
must also be the same date the acknowledgment is completed.
(Additional information) The notary public must print his or her name as it appears within his or her
commission followed by a comma and then your title(notary public).
• Print the name(s) of document signer(s) who personally appear at the time of
notarization.
CAPACITY CLAIMED BY THE SIGNER • Indicate the correct singular or plural forms by crossing off incorrect forms(i.e.
❑ Individual(s) he/she/they—is/are)or circling the correct forms.Failure to correctly indicate this
information may lead to rejection of document recording.
❑ Corporate Officer • The notary seal impression must be clear and photographically reproducible.
Impression must not cover text or lines.If seal impression smudges,re-seal if a
(Title) sufficient area permits,otherwise complete a different acknowledgment form.
❑ Partner(s) • Signature of the notary public must match the signature on file with the office of
the county clerk.
❑ Attorney-in-Fact Additional information is not required but could help to ensure this
❑ Trustee(s) acknowledgment is not misused or attached to a different document.
❑ Other Indicate title or type of attached document,number of pages and date.
Indicate the capacity claimed by the signer. If the claimed capacity is a
corporate officer,indicate the title(i.e.CEO,CFO,Secretary).
• Securely attach this document to the signed document
C 2004-2015 ProLink Signing Service,Inc.—A➢Rights Reserved www.TheProLink.com—Nationwide Notary Service
Exhibit A
PROPERTY
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 DECEMBER 19,
2014 IN BOOK 879 OF MAPS, PAGES 19 - 25, SANTA CLARA COUNTY RECORDS.
EXCEPTING FROM A PORTION OF PARCEL 1, THE UNDERGROUND WATER
RIGHTS, WITH NO RIGHT OF SURFACE ENTRY, AS CONVEYED TO
CALIFORNIA WATER SERVICE COMPANY, A CALIFORNIA CORPORATION, BY
DOCUMENT RECORDED OCTOBER 19, 1981 IN BOOK G400, PAGE 445 OF
OFFICIAL RECORDS.
APN: 316-06-061 (Affects a portion of Parcel 1) and 316-07-049 (Affects a portion of
Parcel 1)
I
Exhibit B
FACILITIES
I
i
i
I
00
V N. Wolfe Rd. o�
r ( `G
m cn � � �
W -u rN) > cri
V1 N00
W CD J�
'+
x �\ T
� N CD
cn cD CD
� �CD -m + 0 McnK rn �-n
� v OC, x p w
CD s =CD CD
—I CD
N WCD OWE cWOW
00 P/ 1 CD CD
f' n �
! CD
cn -
I
I N� C�
i
I
I
1 ''N
i LS
1
ti
I Q�
MR
I m
�
co-o 00
cn �I CO O
I1 C
< N� pN)
1 --- W N'p m
Q 7 CD
cocn
;:r f71
00
Oo t3
I c
m CO
». W ;
I -1
rF '1 W
1 Ul k
1 -CA)
I Cn 01 1 W
0�
I
Oho-0 (0cn -0 CA)
W
C') .0 CD N
r 'U j W -1 M W
m N O -D f
Z W
cn N
LW hr
C
N. Tantau Ave.
921 i IV. VVUIIC Mu.
O m
<
Fn
N O O
W cn c*
' O I ((D �� unCO
N O N -L
D
N U) X O ��-* cn W N
O m co VW CA) - GJ � _
D co 3
—0
cD
co �� / _70
-- .� ,/ O
—0At-, (D
v CD w '
rn�
00
cn w '
-0 v, `a;
0 '
cn W I
N
(nW �� �� � �
al
O O W '�(Q O Q7 ED
_CD .Op I
Q (j) I
N -0 N
cD I
I
� O
�\ 0 -4 ) '
� ono '
r I
03 '
rQ NUl�
o w-0 —•W
N I
-0 V ��
I
Calabazas Creek -
0
--r— o
oi�: I
COlt�
00� W� 00 t. U) I
( O Oa -0 N) I
U) N a N ,
� O -0 co
m
N. Tantau Ave.
Exhibit C
FORM OF MAINTENANCE INSPECTION REPORT
'a m v
a a E c a m
° c
a a`) m
c
o � v E c 3 a N a� m
a c
o m a�i E •N �e ;n
v oa N s
Is
3 ao °0 c ai O o v o F vu NL oaoa'C N E a' m L O O 'o O L U T
'O O O '� o V L N Cl > L m > G9 E N a
C
c o E v - N o o c u L v u m a
f0 v :o E ? 0) E a c
o a m N _ o a v a o o c a � . c E
�- s N c ,c m cu s a r z 'N u 0 m E a
o a' W ° ` o o o O c ° m a a p a o
am o
o a v c o w :o E m .E aj D c w w Cp
m y o m E o o `° a 0 > m a a o y
° Q o S N v 'o "' Nu N a aiS �' > 'o 3 m
a N c .O O = N N a m o ° m ") m m O to m C)
N m- w O > C 'O a s
s m s- O a s o as m C N r y _^ w m O O a
o 'o o a o E m m c n N m L c ^ a
o o c o a ` 2 c > o w o t 3 > v
Lc O v C C a) 'O a y O ° a m m O a m C
N L Lao
aC O v o m m ro as u a c '+ c v ^ -^ 3
O C m 'o t�/1 N V N N Y Y m t L N a
Ftv3i rG .a O .E 'o > E Q 2 c ro c
m
E
W
v
`o
w
N Ul
N C
C
-O Ul
m
m „
> >• E
U m m u `O v
c ° j a s N N N N N
_O _� Q m N m N m V N m VI N
+ E N a c a a a c m a
m o 'N c .N c o m ao C v o aci v v 'v o ac -o
O C C C 4- a > >; m > >: m > >: m > >^ 3 a j, m > a
° C O O Y a O Y a E a � � a a m `) C o L a a o O
X E a a 0 0 c a E c v E c v E c o E cai o ° c c o E c
0 w- a
LJJ a m a o c c c c 13- m a) o c o
v
N C
c c v c o
t ,m, .ac a 30 v N E
a y a) t jI m vN C O o
m 3 c c v s as +�
a Y L a 2
L O O N ^ m O
> 3
c o c
a N o v o L v Q L o m
a m o m s E v c o
0 o E •o m o a E o
'C7 m u m a - 'O a m o
y m c m °' E E o o o ° °
m o a 0 c a m o v ° v 'N . a a E o a nn
E 3 u m m y -a° N No o c y 4 F
m ° ° O O L O O C N a L O ° p �° v
C C c a C N a ° C C 'O C m c
a = fa+ Y C �a-• C C y.� L m m a O y0 O o
a)) a s a C m a a a L E u C a
m v E O = a O c a O = m a c
• .n N I- a O w a U m a > a Q too w w
• a
v m
3 m a) v
• C N7 N v �O
as c O W Y C 4!
C m a C c O O
• C h E 'o a U +�+ U
i m a o a cc a cv,
•• N N W > C C C Q
N m V ui k.6 n o6
Exhibit D
INSURANCE REQUIREMENTS
Covenantor 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 Covenantor, its agents, representatives,
employees or contractors.
MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
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 Covenantor'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 Covenantor'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 01 04 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 1
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.
i
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.
❑ N/A if box checked(Contractor provides written verification it has no employees).
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. Covenantor 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, Covenantor 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.
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.
Primary Coverage
For any claims related to this agreement, Covenantor'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
Each insurance policy required shall provide that coverage shall not be canceled except on thirty(30)
days-notice. Covenantor shall provide thirty(30)day notice of such cancellation to the City. In the
event of cancellation, Covenantor 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. Covenantor agrees to waive rights of subrogation which
any insurer of Covenantor may acquire from Covenantor by virtue of the payment of any loss.
Covenantor 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 Covenantor, its employees, agents and subcontractors.
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"V I I"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
Covenantor shall require and verify that all subcontractors maintain insurance meeting all the
requirements stated herein, and Covenantor 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.
Self-Insurance
So long as Covenantor maintains an audited net worth of$100,000,000, Covenantor may satisfy
the insurance requirements in this Exhibit D through a program of self-insurance, self-insured
retentions and/or deductibles; provided that Covenantor 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
Covenantor's decision to self-insure such losses or liabilities. Covenantor shall be responsible for
payment of all self-insured retentions or deductibles under such insurance.
I