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09-123 Stelling Palms Maintenance Agreement RECORDED AT THE REQUEST OF ) And ) WHEN RECORDED RETURN TO: ) SPACE ABOVE FOR RECORDER'S USE ONLY MAINTENANCE AGREEMENT THIS MAINTENANCE AGREEMENT ("Agreement") is made and entered into this ~a"~ day of U~-~- 20~ by Stelling Palms of Cupertino, LLC, a California limited liabilitX company= (he inafter referred to as "Declarant"), and the City of Cupertino ("City"). RECITALS: This Agreement is made and entered into with reference to the following facts: A. Pending the approval of the State of Califi~rnia Department of Real Estate, it is anticipated that STELLIlVG PALMS OWNERS' ~~SSOCIATION, a California corporation, will be the successor in interest to Declarant, the developer of the real property and improvements that comprise Las Palmas ("Project") that is located at 10855 North Stelling Road, Amended Map of Tract No. 9983, within the City of Cupertino ("City"), County of Santa Clara, State of California. B. As set forth herein, the provisions of this agreement are intended to and shall run with the Project and be binding upon all owners, successors and assigns of the Project, or any portion thereof. C. The purpose of this Agreement is to alloc<<te the costs of maintenance, repair and replacement between Declarant and the City of certain improvements, including landscaping, that is situated on real property owned by City along 10855 North Stelling Road in front of the Project, and to establish certain criteria and procedures for the accomplishment of said maintenance, repair and replacement. 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 and determined that the provisions of this Agreement ;hall run with the land and shall be binding on all parties having or acquiring any right, title or im:erest in the real property described 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, 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 Cost of Repair, Replacement and Maintenance: Declarant, or its successor in interest, shall, at its sole cost and expense, maintain, repair, replace, and keep in good condition all improvements, paver blocks, and landscaping located on the portion of the City's property that abuts and fronts the Project ("the Frontage Area of the Project") along 18055 North Stelling Road to back of curb line, excepting there from the standard public sidewalk abutting the property line of the Project which shall remain the maintenance responsibility of the City. Exhibit "B" shows the portion of the City's property for which Declarant is responsible for maintenance hereunder. 3. Definitions of Repair, Replacement and Maintenance: The repair, replacement and maintenance to be undertaken and performed undf:r this Agreement shall include all work necessary to maintain the Frontage Area of the Project described in paragraph number two and delineated on Exhibit "B" in a good, useable condition under all weather conditions. Said Frontage Area of the Project shall be maintained t~~ the standards, specifications and condition to which, at a minimum, they were originally constnicted as evidenced by plans and specifications on file with the City of Cupertino and/or provided to the Declarant. 4. Decisions Re ag rding; Performance of this Agreement: All decisions regarding the need for maintenance, the implementation thereof, and any particular other matters relating to the Frontage Area of the Project shall be determined by the City. 5. Indemnity: Declarant shall defend, indemnify, and hold 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 attorney's fees, arbitration fees or costs and court costs, arising out of or related to the use and landscape maintenance of the Frontage Area of the Project described in paragraph number two and delineated on Exhibit "B", except to the extent that such claims, liabilities, actions, causes of action, and damages arise out of or relate to City's employees, agents, representatives, contrac~:ors, vendors or consultants. 6. Attorney's 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. 7. 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. 8. 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. 9. Severability: In the event any part or provision of this Agreement shall be determined to be invalid or unenforceable under the laws of the `itate of California, the remaining portions of this Agreement which can be separated from the i~rvalid, unenforceable provisions shall, nevertheless, continue in full force and effect. 2 10. No Waiver: The waiver of any coven~mt contained herein shall not be deemed to be a continuing waiver of the same or any other covenant contained herein. 11. Recordation: It is anticipated that this Agreement shall be recorded and shall be executed and acknowledged in proper recordable form. 12. 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 event 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. Executed the day and year first above written. DECLARANT: Stelling Palms of Cupertino, LLC, a California limited liability com any By: '. Keith Kolker, Vice-President By: Lin spinoz , 'ce-Pres' CITY OF CUPERTINO By. Name: ~~L / ~ L ~ n ~~~ ~ Title: ~-~ ~;. ~~~~~ ~ (notary acknowledgement attached) (notary acknowledgement attached) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA ) COUNTY OF SANTA CLARA ) On June 9, 2009 before me, S. Howard, ~i Notary Public, personally appeared Linda Espinoza, 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 she executed the same in her authorized capacity, and that by her signature on the instrument the per- son, 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. rv~ Signature S. HOWARD Commission #~ 1831595 Notary Public -California Santa Clara County M Comm. irea Jan 17, 2013 THE WITHIN CERTIFICA'T'E MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW: Though the below information is not required by la~v, 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: Maintenance Agreement Date of Document: Undated Number of Pages: 3 (w/o attachments, exhibits and/or certificate(s)) Signer(s) Other Than Named Above: Keith Kolker and City of Cupertino Capacity claimed by signer Signer's Name: Linda Espinoza Capacity Claimed: Vice-President Signer is representing: Stelling Palms of Cupertino, LLC, a California limited liability company CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA ) COUNTY OF SANTA CLARA ) On June 10, 2009 before me, S. Howard, a Notary Public, personally appeared Keith Kolker, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument acid 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. S. HOWARD Commission #~ 1831595 Notary PubNc -California ~ Santa Clara County Comm. ices Jan 17, 2013 THE WITHIN CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT L>ESCRIBED BELOW: Though the below information is not required by lavr, it may prove valuable to persons relying on the document and could prevent fraudulent removal an<i reattachment of this form to another document. Description of Attached Document: Title or Type of Document: Maintenance Agreement Date of Document: Undated Number of Pages: 3 (w/o attachments, exhibit:; and/or certificate(s)) Signer(s) Other Than Named Above: Linda Espinoza and City of Cupertino Capacity claimed by signer: Signer's Name: Keith Kolker Capacity Claimed: Vice-President Signer is representing: Stelling Palms of Cupertino, LLC, a California limited liability company Exhibit `A' Legal Description Maintenance Agreement Real property in the City of Cupertino, C~~unty of Santa Clara, State of California, described as follows: Being all of the land encompassed by the overall boundary line, as shown on the Amended Map of Tract No. 9983, as said map was filed for record in the Office of the Recorder of the County of Santa Clara, as File No. 19991681 on September 17, 2008, in Book 827 of Maps at Pages 21-26, County of Santa Clara. Said described area contains 1.105 acres, more or less. 6/8/09 Prepared By: JMH Weiss, Inc. F: Vobs14583-Las Palmas-CupertinolMapsUgreement-Maintenance14583-Maintenance Agr.~ement-Lego! Description.doc AMENDED TRACT NO. 9983 ), I r ___!~ _ ~ ~ 4 ~ i ~/ALI_r Y CH~JRCH Dr -280 I ! J SAN-fA CL~RA C~UNT~I ____~ ) _ - - I - , n ~~ S.W.E. - - - - - ~- S.W.E. '--,~ ~ ~~ -~~5' S W \ _ 5 S W - --- - ------- - 5 ----------- - ---- _ _--- 5 --- - - FRONTAGE AREA _ _ _ - - - - - - - - - ~~CENTERLINE - - NORTH STEELING ROAD _ \ ~,._\ ~ ~-, ~~ _-___ -- - ---- _ _- - --- __ _ _-_ TOTAL FRONTAGE AREA A = 1,8281 SF ABBREVIATIONS D/W DRIVEWAY L/S LANDSCAPE S/W SIDEWALK S.W.E. SIDEWALK EASEMENT 0 20' 40' 80' SCALE: 1" = 40' EXH/B/T 'B' ~~~ ~IE~~~, ~I~t~. Civi! 8ngineering w Su+veging -Land Planning 150 5. PJmaden Boulevard, Suite 700 San Jose, Ca 95173 (408) 286-4555 FN(:(408) 286-4558 www.jmhweiss.com JOB x'4632 04/30/09 SHEET 1 OF 2 DWG N4lE: F:\JaW\1583-Im Palmm~upertino\Yapa\yrxment-Mdnlenance\4583-WINIENVICE AGflEEMEM.d.y, IAST ElN1ED: WM, Jun 03, 2009 10:43am USFR: edn.k AutoCad V.17.Oa (L1/5 Txh), MkrosoX Windo.s N7 Verabn 5.1 (z86) i ~~ I - 2 8 0 LOT 6 ~ LOT 5 LOT 21 LOT ---- LOT 3 ._: - ---- ';j ~ ~~ 12 14 ~2' ~ 5' 1i ' ' S 3' 4' 4' _ - 4 27 15' L/S 5~ , S' P5~ p/yy PAVERS 6' 2 - ---- 9, NORTH 1 os' STEELING L/S - ROAD DETAIL 'A' SCALE: 1 "=20' a J 0 w w m J a w 0 w w 0 10' 20' 40' _ -_ LOT '-= ~ - J LOT 2 i~ LOT 1 4 - LOT 3 = 1-; i ---~ i --- ____ --- i - - - --- I - ~ 46' - a ~ _i ~~~~ ~_~~~~~~~~~ - _ - - - VALLi=Y CHURCH Or-SANTA-CLA RA COUiV-fY 117' _--189'-- NORTH STEELING ROAD 13' ~-- 8' DETAIL 'B' SCALE: 1 "=20' m J a w 0 w w yAIIrY CHURCH OF SANTA CLARA COUi~17Y 117' 189' NORTH STEELING ROAD TOTAL FRONTAGE AREA A=1,8281 SF ABBREVIATIONS D/W DRIVEWAY L/S LANDSCAPE DETAIL 'C' S/W SIDEWALK SCALE: 1 °=20' S.W.E. SIDEWALK EASEMENT ANp S ' ~ G~ ~e~ ~ ~~ N Expires: 12-31-10 U J w 0 w w EXHIB/T 'B' ~~~ ~EISS, INc~. GYvN 6750 S. Almaden~'Bwi~ rd, 70 San Joee, Ca 95113 (408) 286-4555 FAX:(408) 286-4358 www.jmhweiss.com /ae /as3s oe/3o/o9 sH~r 2 a~ z oec NYE: F:\,bb\45si-dp ram,.-ow.ub\~Va~\45s7-NNNIENNiCE rcRmionay. IASf O)i1FD:: Au, Jin a. 2x09 i:ispn usoa wink aiacad V.17.0~ (ENS Achy, Nrro'oR winm.. M Wnion ai (peel CALIFORNIA ALL-PURPOSE ACKN011NLEDGMENT State of California County of ~a- V~-4'12-' On ~'"~f~~4~~ before me, ~~[.~(.t ~ ~INST ~/Uj~~l/ ~ugL/~ Date Here Insert Name and Title of the Officer ' personally appeared ~~ /,W(~- 1~-r yt~~' Name(s) of Signer(s) JULIA KIN3T CoaMnis~bs ~ t e3312! Nstarr PubWc - CaNlornis Essts cars cower Cann. JM ZS ZIl13 who proved to me on the basis of satisfactory evidence to be tl-e person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/sf)e/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. cer~:ify under PENALTY OF PERJURY under the laws of thf~ State of California that the foregoing paragraph is true ;end correct. WITPJESS my hand and official seal. Place Notary Seal Above Signature ~'~`L' ~`~~ Signature of Notary Public OPTION~I L 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: ~ Q-t,.~i Document Date: ~' ~ ~~~ Ge.. Signer(s) Other Than Named Above: ~~ Number of Pages: J~ Capacity(ies) Claimed by Signer(s) Signer's Name: ^ Individual ^ Corporate Officer -Title(s): ^ Partner - ^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Col ^ Other: Signer Is Signer's Name: ^ Individual =1 Corporate Officer -Title(s): rl Partner - ^ Limited ^ General _' Attorney in Fact / Trustee C Guardian or Col Other: i Signer Is Representing Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., PO. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1-800-876-6827 RESOLUTIO~v N0.09-110 A RESOLUTION OF THE CITY COUTICIL OF THE CITY OF CUPERTINO AUTHORIZING EXECUTION OF A MAINTENANCE AGREEMENT, STEELING PALMS OF CUPERTINO, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, 10855 N. STEELING ROAD, AMEIJDED MAP OF TRACT NO. 9983 WHEREAS, there has been presented to the City Council a proposed maintenance agreement between the City of Cupertino and Stelling Palms of Cupertino, LLC, a California Limited Liability Company, 10855 N. Stelling Road, Amended Map of Tract No. 9983, and said agreement having been approved by the City Attorney; NOW, THEREFORE, BE IT RESOLVED THAT the Mayor and the City Clerk are hereby authorized to sign the aforementioned agreement on behalf of the City of Cupertino. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 7th day of July 2009, by the following vote: Vote AYES: NOES: ABSENT: ABSTAIN: ATTEST: Members of the (:~ Council Mahoney, Sando~~al, Santoro, Wang, Wong None None None / ~. City Clerk APPROVED: Mayor, City of pertino