20-061 Amendment #1 07-15-2020RECORDING REQUESTED BY:
City of Cupertino
WHEN RECORDED, MAIL TO:
City Clerk's Office
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014-3255
NO FEE IN ACCORDANCE
WITH GOV. CODE 27383
Regina Alcomendras
Santa Clara County - Clerk -Recorder
09/11/2020 08:01 AM
Titles: 1 Pages: 10
Fees: $0.00
Taxes: $0
Total: $0.00
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
FIRST AMENDMENT TO STORMWATER MANAGEMENT
FACILITIES OPERATION AND MAINTENANCE AGREEMENT
APN: 316-06-062, 316-06-063, 316-06-064, 316-06-065
b_ Original
71 Conformed Copy
FIRST AMENDMENT TO STORMWATER MANAGEMENT FACILITIES
OPERATION AND MAINTENANCE AGREEMENT
APN: 316-06-062, 316-06-063, 316-06-064, 316-06-065
THIS FIRST AMENDMENT TO STORMWATER MANAGEMENT FACILITIES
OPERATION AND MAINTENANCE AGREEMENT (this "Amendment") is made and entered
into this _ 5 day of July, 2020 (the "Effective Date"), by and between the City of Cupertino, a
municipal corporation ("City") and Apple Inc., a California corporation ("Covenantor").
Covenantor and City are referred to collectively herein as the "Parties" and each individually as a
"Party"
RECITALS
This Amendment is made and entered into with reference to the following facts:
A. City and Covenantor entered into that certain Stormwater Management Facilities
Operation and Maintenance Agreement, recorded in the Official Records of the County of Santa
Clara on March 9, 2020 as Document No. 24424906 ("Agreement").
B. Covenantor is the owner of certain real property more particularly described in
Exhibit A of the Agreement.
C. Pursuant to the Stormwater Management Plan prepared by Luk and Associates
dated December 13, 2018, which is on file with the Public Works Department of the City,
Covenantor has constructed certain improvements in the vicinity of the building now known as
Tantau 14 (which is in the location labeled "Tantau 3" and "Tantau 4" on Exhibit B to the
Agreement), in addition to those Facilities described in the Agreement.
D. City and Covenantor desire to modify the Agreement on the terms and conditions
set forth herein.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, City and Covenantor agree to amend the Agreement as of the
Effective Date as follows:
1. Definitions. All capitalized terms not otherwise defined in this Amendment shall
have the meanings assigned to such terms in the Agreement.
2. Recitals. Recital D of the Agreement is hereby deleted in its entirety and replaced
with the following:
"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 Exhibit B-1 and described in the following: (a) Stormwater
Management Plan prepared by Luk and Associates dated May 15, 2016; (b) Stormwater
Management Plan prepared by Luk and Associates dated July 3, 2016; (c) Stormwater
Management Plan prepared by Luk and Associates dated October 4, 2016; and (d) Stormwater
Management Plan prepared by Luk and Associates dated December 13, 2018, which plans,
together with any and all amendments, including future amendments, thereto (collectively, the
"SWNIF), are on file with the Public Works Department of the City of Cupertino, California, and
are hereby incorporated by reference."
3. Exhibits. The document attached hereto as Exhibit 13-1 is hereby incorporated into
the Agreement as Exhibit 13-1.
4. Authority. Covenantor hereby represents and warrants to City that (a) Covenantor
is a California corporation in good standing under the laws of the State of California, (b)
Covenantor has full power and authority to enter into this Amendment and to perform all
Covenantor's obligations under the Agreement, as amended by this Amendment, and (c) the person
signing this Amendment on behalf of Covenantor is duly and validly authorized to do so and that
such person's signature alone is sufficient to bind Covenantor to this Amendment. City hereby
represents and warrants to Covenantor that (x) City is a municipal corporation in good standing
under the laws of the State of California, (y) City has full power and authority to enter into this
Amendment and to perform City's obligations under the Agreement, as amended by this
Amendment and (z) the person signing this Amendment on behalf of City is duly and validly
authorized to do so and that such person's signature alone is sufficient to bind City to this
Amendment. The Parties agree to indemnify, defend and hold each other harmless from and
against any liability, claim, loss, cost, damage or expense arising from or based upon either Party's
breach of any of the representations and warranties set forth in this Paragraph 4.
5. Recordation, Amendments. City, at Covenantor's expense, shall cause this
Amendment to be recorded in the Official Records of Santa Clara County, California ("Official
Records") promptly following execution hereof. The Agreement may be amended further in whole
or in part only by mutual written agreement. Any such amendment shall be recorded in the Official
Records.
6. Effect of Amendment. Except as otherwise revised by this Amendment, all terms
and conditions of the Agreement shall remain unchanged and in full force and effect. To the extent
of any conflict between the terms of this Amendment and the terms of the Agreement, the terms
of this Amendment shall control. This Amendment may be executed in counterparts, each of
which shall be deemed an original, and together shall constitute one and the same document.
Signatures to this Amendment created by the signer by electronic means and/or transmitted by
email, telecopy or other electronic means shall be treated as original signatures and shall be valid
and effective to bind the Party so signing. The caption and section headings of this Amendment
are inserted for convenience of reference only and shall in no way define, describe or limit the
scope or intent of this Amendment or any of its provisions. This Amendment shall be binding
upon and inure to the benefit of the Parties hereto and, their successors and assigns (subject to the
terms and conditions of the Agreement relating to assignment, subletting or other transfers); shall
be governed by and construed in accordance with the laws of the State of California applicable to
agreements made and to be wholly performed within said State; and may not be modified or
amended in any manner other than by a written agreement signed by both Parties. If any term or
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provision of this Amendment or the application thereof to any persons or circumstances shall, to
any extent, be invalid or unenforceable, the remainder of this Amendment or the application of
such term or provision to persons or circumstances other than those as to which it is invalid or
enforceable shall not be affected thereby, and, except to the extent invalid or unenforceable as
described in this sentence above, this Amendment shall remain valid and enforceable to the fullest
extent permitted by law. This Amendment constitutes the final and complete expression of the
Parties' agreements with respect to the subject matter of this Amendment, and any prior
negotiations or transmittals with respect to the subject matter of this Amendment shall be of no
force or effect. City and Covenantor agree and acknowledge that this Amendment has been freely
negotiated by both Parties; and that in any controversy, dispute, or contest over the meaning,
interpretation, validity, or enforceability of this Amendment or any of its terms or conditions, there
shall be no inference, presumption, or conclusion drawn whatsoever against either Party by virtue
of that Party having drafted this Amendment or any portion thereof.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, City and Covenantor have executed this Amendment as of the
Effective Date.
COVENANTOR
Apple Inc.,
a California corporation
By J
Name: \TO' n
Its:1) of� �Ildy►GafIM
(Notary ackrrowledgen�t to be atta d)
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CITY
City of Cupertino,
a municipal corporation
By: -
Name:
Its: �'- --I_Yoac DF �vIf4j� (,✓I
(Notary acknowledgement to be attached)
APPROVED AS TO FORM
GAS 4A I V'N�1_--.
`4' wk� '-f 41. m' A Q-p- C , City Attorney
ATTEST:
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EXHIBIT B-1
(see attached)
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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 �uu(y 15, 2 01 , before me, Terencia Tervalon, a Notary Public, personally
appeared Rickard, 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.
�;w., TERENCIA TERVALON
Signature 1/ ^�/ N' (Seal) l : Notary Public. California
Santa Clara County
Commission N 2289071
UXEM.
y Comm. Expires May 1!, 2023
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 09/08/2020
before me, Marilyn Monreal
(Isere insert name and title of the officer)
personally appeared Roger Lee, Director of Public Works, City of Cupertino
Notary Public,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph
is true and correct.
MARILYN MONREAL
Notary Public . California
-' Santa Clara County
:7,
m and and i ial seal. _ "�"°� Commission N 2205276
My Comm, Expires Jul 15, 2021
Signature of Notary Public (Notary Seal)
ADDITIONAL OPTIONAL INFORMATION
DESCRIPTION OF THE ATTACHED DOCUMENT
First Amendment to Stormwater Management
(Title or description of attached document)
Facilities Operation & Maintenance Agreement
(Title or description of attached document continued)
Number of Pages 7 Document Date 07/15/20
(Additional information)
CAPACITY CLAIMED BY THE SIGNER
❑ Individual (s)
❑ Corporate Officer
(Title)
❑ Partner(s)
❑ Attorney -in -Fact
❑ Trustee(s)
❑ Other
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City of Cupertino
CERTIFICATE OF ACCEPTANCE is hereby given in order to comply with the
provisions of Section 27281 of the Government Code.
This is to certify that the interest in real property conveyed by the deed or grant
dated 5 , LOW from Apple Inc., a California corporation, to the City of
Cupertino, a municipal corporation, is hereby accepted by the undersigned on behalf of
the City Council of the City of Cupertino pursuant to authority conferred by Resolution
No. 11-175 of the City Council adopted on October 4, 2011, and the grantee consents to
recordation thereof by its duly authorized officer.
Dated:
By: ..��
Roger L
Public Works Director