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E-625 Easement, #369-06-009, 369-06-010 RECORDED AT THE REQUEST OF and WHEN RECORDED RETURN TO: City Clerk's Ot'tice City of Cupertino 10300 "Torre .\venue Cllptrhfl0, C_~1 9~01~}-32» SPACE ABOVE FOR RECORDER'S USE ONLY STORMWATER MANAGEMENT FACILITY EASEMENT AGREEMENT County Assessor's Parcel #E369-06-009, 369-06-010 THIS STORMWATER MANAGEMENT FACILITY EASEMENT AGREEMENT ("Agreement") is made and entered into this day of , 2009, by Evershine VI, L.P., A California Limited Partnership, (herein<<fter referred to as "GRANTOR") and the City of Cupertino ("CITY"). The GRANTOR does hereby grant and convey to t:he CITY, a Stormwater Facility Management Easement, as described in Exhibit "B" of this Agre-ement. RECITALS: This Agreement is made and entered into with reference to the following facts: A. The GRANTOR is the owner of real property and improvements located within the City of Cupertino, County of Santa Clara, State of California ("PROPERTY"), as described in Exhibit "A" of this Agreement. B. The developer of the property is required to install, operate, and maintain stormwater management facilities within the PROPERTY. The stormwater management facilities are shown in the Stormwater Management Plan prepared by LJnderwood & Rosenblum, Inc,. and dated October 1, 2007, which plans and any amendment:. thereto, are on file with the Public Works FINAL -1- 10/21 /03 Department of the City of Cupertino, California. 7,he CITY has reviewed and approved the Storm Water Management Plan subject to the execution of this agreement. C. The GRANTOR, its successors and assign:;, shall be responsible for maintenance of these stormwater management facilities in accordance with the Storm Water Maintenance Agreement for this facility and the CITY's Stormwater Pollution Prevention and Watershed Protection Ordinance. D. The CITY, its successors and assigns, shall at all reasonable times have a right to enter said easement for the purpose of inspecting, monitoring, modifying, maintaining, and repairing the stormwater management facilities at the PROPERTY, within the easement described in Exhibit "B." E. While this Agreement is in effect, the GRANTOR will not erect nor permit to be erected any building or structure of any nature whatsoever., nor fill or excavate within said easement without the CITY's written consent. F. The GRANTOR will warrant specially said easement and shall execute such further assurances thereof as maybe requisite. G. In the event that the CITY shall determine ;~t its sole discretion at any future time that the Stormwater Management Facility is no longer regL~ired, then at the request of the GRANTOR, its successors and/or assigns, the CITY shall execute ;~ release of this Agreement which the GRANTOR, it successors and/or assigns, shall record with the COUNTY, at its/their expense. NOW, THEREFORE, the parties hereto agree as follows: 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 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 describe-d in Exhibit "A" 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, ~~nd 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. Indemnity: The GRANTOR 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 FINAL -2- 10/21 /03 attorneys' fees, arbitration fees or costs and court costs, arising out of or related to the use of the easement described i~z Exhibit "B," 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. 3. Attorneys' Fees: In the event that Amy 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 prev,~iling party in such action or arbitration shall be entitled to reasonable attorneys' or arbitrators' fees in addition to all other recoverable costs, expenses and daanages. 4. 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. 5. Entire Agreement: This Agreement constitutes the entire agreement of the parties with respect to the subject matter a~ntained 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 expressed herein. 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 for the invalid, unenforceable provisions s11a11, nevertheless, continue in full force and effect. 7. 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. 8. Amendment: This Agreement maybe 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 an}~ 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. FINAL -3- 10/21 /03 "EXHIBIT A" Legal Description THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF CUPERTINO, COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: All of Parcel B and C as shown upon that cert~~in Map entitled, "Parcel Map being a portion of Lot 3 `Map of Craft Estate Partition' (L-M-28), which Map was filed for record in the office of the Recorder of the County of Santa Clara, State of California, on August 14, 1978 in Book 424 of Maps, at pag~;s 39 and 40. Excepting there from the underground water r-fights as quitclaimed to the City of Cupertino, a municipal corporation, recorded .August 8, 1977 in Book D056 at page 310, Official Records of Santa Clara County. May 21, 2009 Page 1 of 1 "EXHIBIT B" LEGAL DESCRIPTION STORMWATER MANAGEMI='sNT FACILITY EASEMENT ALL THAT REAL PROPERTY in the County of Santa Clara, State of California, described as follows: A portion of Parcel C as shown on that certain Parcel Map entitled "Parcel Map being a portion of Lot 3 `Map of Craft Estate Partition' (L-M-28), which was filed for record in the office of the Recorder of the County of Sa~ita Clara, State of California on August 14, 1978 in Book 424 of Maps, at Pages 39 and 40, more particularly described as follows: Area #1 Commencing at a point on the southerly right-of--way line of Stevens Creek Boulevard and at the most northeasterly corner of said Parcel C, as said Parcel C is shown upon that aforementioned Parcel Map; Thence, from said Point of Commencement, and running along said easterly line of said Parcel C, South 00°24'00" East 25.31 feet, Thence leaving said easterly line, South 89°36'00" West 2.83 feet to the True Point of Beginning #1, of Area #1; Thence, from said True Point of Beginning #1, South O1°02'24" West, 8.00 feet; Thence, North 88°57'36" West, 8.00 feet; Thence, North O1°02'24" East, 8.00 feet; Thence, South 88°57'36" East, 8.00, to the Tn.~e Point of Beginning #1, and containing 64 square feet. Area #2 Commencing at a point on the southerly right-of--way line of Stevens Creek Boulevard and at the most northeasterly corner of said Parcel C, as said Parcel C is shown upon that aforementioned Parcel Map; Thence, from said Point of Commencement, and running along said easterly line of said Parcel C, South 00°24'00" East 191.90 feet, Thence leaving said easterly line, South 89°36'00" West 185.18 feet to the True Point of Beginning #2, of Area #2; Thence, from said True Point of Beginning #2, South 00°24'00" West, 3.00 feet; Thence, North 89°36'00" West, 51.00 feet; Thence, North 00°24'00" East, 3.00 feet; May 21, 2009 Page 1 of 2 Thence, South 89°36'00" East, 51.00, to the True Point of Beginning #2, and containing 153 square feet. Area #3 Commencing at a point on the southerly right-of--way line of Stevens Creek Boulevard and at the most northeasterly corner of said Parcel C, as said Parcel C is shown upon that aforementioned Parcel Map; Thence, from said Point of Commencement, and running along said easterly line of said Parcels B and C, South 00°24'00" East 283.72 feet, Thence leaving said easterly line, South 89°36'00" West 50.17 feet to the True Point of Beginning #3, of Area #3; Thence, from said True Point of Beginning #3, South 00°24'00" West, 7.00 feet; Thence, North 89°36'00" West, 81.00 feet; Thence, North 00°24'00" East, 7.00 feet; Thence, South 89°36'00" East, 81.00, to the True Point of Beginning #3, and containing 567 square feet. May 21, 2009 Page 2 of 2 STEVENS CREEI:~ BOULEVARD POC N89'36'00"E _~ i ~, ~ N \ S89:36'00"W `~ ~ / 2.83' AREA 1 s88.57'3s~~y ,W \ 64 SQ. FT. =W s.oo' ~ o I I Q ° ° ~~ o \ °z 8.00' ~~ ^~ N88 57'36"W / \ ~ ARIA 2 153 SQ. FT. N8936'00"E 51.00' / .~ .~ ,.. - - - S89 ;36'00"W 51.00' N00'24'00"W 3.00' ~o LAND SG ~~5 ~N,. ROS~~ ~`~~ ? ~ o '' ~ 6q. 12_3110 ~~ 'D S89'36'00"W _ - _ 185.18' I I 0 rn rn °, I ~~ co I cC CV n ri N .. W to 0 I~ N O O N S0024'00"E 3.00' PARCEL C, A PORTION OF LOT 3 'MAP OF CRAFT ESTATE PARTITION' N~ RECORDED AUGUST 14, 1978 ~~ BOOK 424 OF MAPS AT PAGES 39-40 POB=POINT OF BEGINNING POC=POINT OF COMMENCEMENT 19620, 19724-19770 STEVENS AREA, 3 567 SQ. FT. POB#3 N89 ;36'00"E 81.00' S89'36'00"W ~~ - - 50.17' ~ - - ~~ S89 ;36'00"W 81.00' N0024'00"W' S00 24'00 "E 7.00' 7.00' CREEK B]~VD. UNDERWOOD & FOR STORMIfATER MANAGEMENT • ROSENBLUM INC. FACILITY EASEMENT AGREEMENT ~ MARKETPLACE SHOPPING CENTER • civil engineers and surveyors BUILDING C 1630 Oakland Road Ste. A114 San Jose, Ca. 95131 18620 dt 19640 STEVENS CREEK BOULEVARD Td. No. (408) 453 1222 Fax Na (408) 453 1207 CUPERTINO, CALIFORNIA 95014 Date: 5-21-09 I Scale 1 "=40' 1 Job No. J06109.8 I CALIFORNIA ALL-PURPOSE ACKNOVWLEDGMENT erc~:crc~.c~~a~.crcrc=~.~r,~-r,~c~.~c.~,~r'.cr- .~r~-c~ .cc~-~.c=oc-r,~.crcccri?rc~.cre~.cc..e~ze- - - - - - . ~_: ,i-,c. _ . -. State of California County of SAN ?~4 C L ~ R~ On M14Y ~.8 .Z bb 9 before me, Date personally appeared ~'l ~N :L ANTHONY T. LEE Commiaabn # 1741794 e Notary Public - California Santa Clara County MyComm. E~YeaApr26, 2011 Ptace Notary Seal Above 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. WITNI~SS my hand d off/iJci~al seal. Signature ~" v~ Signature of otary Public OPTIONAL. 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 Date: ~~RE$M~~NT Number of Pages: ~-- Signers} Other Than Named Above: --- Capacity(ies) Claimed by Signer(s) Signer's Name: O Individual ^ Corporate Officer -Title(s): ^ Partner - ^ Limited ^ General C7 Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: Signer Is Representing: Top of thumb here Signer's Name: ^ Individual ^ Corporate Officer -Title(s): _ L] Partner - ^ Limited ^ General C.l Attorney in Fact ^ ~ fUStee ^ (guardian or Conservator ^ Other: Signer Is Representing: Top of thumb here ®2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, C~3~132gp2~~aryorg Item #5907 Reorder: Catl Totl-Free 7-800-676-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California,~, ~~ 11 County of J t~-~c~ C~-9~V~1~. On ~ ~ ~ ~ ~ ~ before me, .~ u- ~ t G.. ~~-t r~~~ ~~ ~--~' t" ~~, Date Here Insert Name and~itle of the Officer personally appeared who proved to me on the basis of satisfactory evidence to be tYfe person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/sloe/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. WITfJESS my hand and official seal. Place Notary Seal Above Signature ~-~~~ Signature of Notary Public OPT/ON~1 L Though the information below is not required by law, it may pf ove 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: s l~-l~ ~.~ ~- ~,~~-{~-~. (~~-~A ~-tti-~' Document Date: ~P ~~ IO 9 Number of Pages: ~ ~ti~ Signer(s) Other Than Named Above: N Capacity(ies) Claimed by Signer(s) Signer's Name: ^ Individual ^ Corporate Officer -Title(s): ^ Partner - ^ Limited ^ Ger ^ Attorney in Fact ^ Trustee / ^ Guardian or Conse ^ Other: Signer Is Representing Top of thumb here Signer's Name: C] Individual ^ Corporate Officer - C] Partner - ^ Limited ^ Attorney in Fact C] Trustee ^ Guardian or Co erg Cl Other: s): General Signer Is Representing: Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91:13-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1-800-876-6827