09-153 Stormwater Management Facilities Operation and Maintenance Agreement 20920 McClellan Rd
RECORDED AT THE REQUEST OF )
and )
AND WHEN RECORDED RETURN TO: )
SPACE ABOVE FOR RECORDER'S USE ONLY
STORMWATER MANAGEMENT FACILITIES
OPERATION AND MAIf~ITENANCE AGREEMENT
County Assessor's Parcel #359-20-028
THIS STORMWATER MANAGEMENT FACILITIES OPERATION AND
MAINTENANCE AGREEMENT ("Agreement") is made and entered into on
~ day of C7c -~ 20l~ by St. Jude the Apostle Episcopal Church in
Cupertino, California, (hereinafter jointl~r referred to as "COVENANTOR") and the
City of Cupertino ("CITY").
RECITALS:
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 Storm Water Pollution
Prevention and Watercourse Protection Ordinance, effective October 15, 2003
(the "Ordinance").
B. The COVENANTOR is the owner cif a certain tract or parcel of land more
particularly described in Exhibit `A' attached hereto (the "Property").
C_ The COVENANTOR desires to consitruct certain Parking Lot Improvements on
the Property that may alter existing storm water conditions on both the Property
and adjacent lands.
D. To minimize adverse impacts due to the Parking Lot Improvement changes in
existing storm and surface water flow conditions, COVENANTOR is required by
CITY to build and maintain, at COVEPJANTOR'S expense, certain storm water
management facilities (the "Facilities").
E_ The Facilities are more particularly described and shown in the Storm Water
Management Plan prepared by Mission Engineers, Inc. and dated August 24,
2009, which plans and any amendments thereto, are on file with the Public
Works Department of the City of Cupertino, California, and are hereby
incorporated by reference.
F. The Facilities are located in a rectangular 24' x 28' storm drain infiltrator area
near the SW corner of the Property, as described in Exhibit "B" hereto
(hereinafter called the "Easement")_
G_ The CITY has reviewed and approved the Parking Lot Improvement Plan and
the Storm Water Management Plan ,>ubject to the parties' execution of this
Agreement.
NOW, THEREFORE, in consideration of the benefit received and to be received
by the COVENANTOR, as a result of the CITY'S approval of the Parking Lot
Improvement Plan and the Storm Water Management Plan, the COVENANTOR,
hereby covenants and agrees with the CITY as follows:
1. Covenants Running With The Land: 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
described in Exhibit `A', or any portion thereof, and shall be for the benefit of
each owner of any 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 there:of_
2. Responsibility for Installation, Operation and Maintenance: At its sole
expense, the COVENANTOR, its successors and assigns, shall construct,
operate, maintain and repair the Facilities in accordance with the Storm Water
Management Plan and any applicable I~cw or regulation.
3. Responsibility For Facilities Modifications: At its sole expense, the
COVENANTOR, its successors and assigns, shall make such modifications to
the Facilities as may be determined ~~s reasonably necessary by the CITY to
ensure that the Facilities are properly maintained and continue to operate as
originally designed and approved. Any modifications to the Facilities, other than
operation, maintenance and repair, may be made only with prior written
authorization by the CITY.
4. Facility Inspections by the CITY: On 72 hours prior written notice to
COVENANTOR, during daylight times Mondays through Fridays, and in a
2
reasonable manner as provided in the Ordinance and in the Storm Water
Facilities Easement Agreement, the CITY, its agents, employees, contractors
representatives, vendors, and consultaints, shall have the right of ingress and
egress to the Facilities and the right to inspect the Facilities in order to ensure
that the Facilities are being properly m~~intained, are continuing to pertorm in an
adequate manner and are in compliance with the Storm Water Management
Plan_ The CITY reserves the rights to access at any time for emergency
response.
5. Failure to Pertorm Required F"acility Reoairs or Modifications: Should
either the COVENANTOR, or its successors and assigns, fail to correct any
defects in the Facilities in accordance with the approved design standards and/or
the Storm Water Management Plan an<~ any applicable law or regulation within
the following time limits specified in a written notice from the CITY, namely within
90 days for any defects costing under $10,000 to repair, within 180 days for any
defects costing over $10,000 but under 9125,000 to repair, within 270 days for any
defects costing over $25,000 but under 950,000 to repair, and within 360 days for
any defects costing over $50,000 to rep=air, then the CITY shall have the right, to
enter the Easement to perform remedial work, for which the CITY will collect
reimbursement for such work from CO\/ENANTOR. In addition, the CITY may
pursue other such remedies as provide=d by law, including, but not limited to,
such civil remedies set for in Sections !3.18.190, 9.18.230, and 9.18.250 of the
Ordinance.
6. Indemnity: The COVENANTOR its successors and/or assigns shall
defend, indemnify and hold harmless the' CITY from any and all claims, liabilities,
actions, causes of action, and damages for personal injury and property damage
to CITY real property and/or its erployees, including without limitation
reasonable attorneys' fees, arbitration fees or costs and court costs arising out of
or related to the COVENANTORS, its successors' and/or assigns' negligence or
intentional misconduct in the construction, operation, maintenance and repair of
the Facilities in the Easement, except to the extent that such claims, liabilities,
actions, causes of action, and damages arise out of or are related to the CITY'S
negligence and/or intentional misconduct: or the negligence or intentional acts of
any of the CITY'S officials, officers, employees, agents, representatives,
contractors, vendors, or consultants.
7. COVENANTOR Obligations and Resoonsibilities: Initially, the
COVENANTOR shall be solely responsible for the performance of the obligations
required hereunder and, to the extent permitted under applicable law, the
payment of any and all fees, fines, and penalties associated with such
performance or failure to pertorm under this Agreement. Notwithstanding any
provisions of the Agreement to the contr~~ry, upon recordation of a deed or other
instrument of sale, transfer or other conveyance of fee simple title to the real
property described in Exhibit `A' or any ,portion thereof (a "Transfer") to a third
party (the "Transferee"), the COVENANTOR shall be released of all of its
obligations and responsibilities under i:his Agreement accruing to the dated of
such Transfer to the extent such obligations and responsibilities are applicable to
that portion of the real property described in Exhibit `B' included in such Transfer,
but such release shall be expressly conditioned upon the Transferee assuming
such obligations and responsibilities by recorded written agreement for the
benefit of the CITY. Such written agreement may be included in the Transfer
deed or instrument, provided that the l-ransferee joins in the execution of such
deed or instrument. A certified copy of :such deed, instrument or agreement shall
be provided to the CITY. The provisions of the preceding three sentences shall
be applicable to the original COVENANTOR and any successor Transferee who
has assumed the obligations and responsibilities of the COVENANTOR under
this Agreement as provided above.
8. Termination of Easement and Agreement: If the CITY determines in its
reasonable discretion at some time in the future that the storm water
management facility is no longer r.squired, then at the request of the
COVENANTOR, its successors and/ar assigns, the CITY shall execute a
Quitclaim Deed to the Easement and a Release of this Agreement, that the
COVENANTOR, its successors and/or assigns, shall record with the Santa Clara
County Recorder's Office, at its/their expense.
9. 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 or injunctive relief for any alleged breach hereof, the prevailing party in
such action or arbitration shall be entitled to reasonable attorneys' fees or
arbitrators' fees in addition to all other recoverable costs, expenses and
damages.
10. Entire Agreement: This Agreement, the parties' Storm Water
Management Facilities Easement Agreement, COVENANTOR'S Parking Lot
Improvement Plan, COVENANTOR'S Storm Water Management Plan, CITY'S
Parking Lot Improvement Plan Approval and CITY'S Storm Water Management
Plan Approval constitute the entire written agreements of the parties with respect
to the subject matter contained herein and supersede all prior agreements,
whether written or oral. There acre no representations, agreements,
arrangements, or undertakings, oral or written that are not fully expressed
therein. Amendments to one or more of the plans and those amendments could
be added and such amendment would be: binding-
1 1 . Amendment of Agreement: This Agreement may be 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 any conflict arises
between the provisions of any such amendment and any of the provisions of any
earlier document or documents, the moist recently duly executed and recorded
amendment shall be controlling.
4
12. Agreement Severable: 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. 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 contain
herein.
COVENANTOR:
CITY:
Approved as to form:
~ U~~
~MO~ ~CO~c.-~~
St. Jude the Apostle Episcopal Church in
Cupertino, California
Past Karen Siegfriedt /~ President
BY: ~iLr L ~ %,4
I~RT 21 C I A [. l'o L ~5, Its _SECRE7-.q ~~~
City of ertino a Municipal Corporation
B .
Its:
Aiies~} BY~ to a7 o~j
Its: Ge a
STATE OF CALIFORNIA
COUNTY OF SAN A CLARA
On ,pJI/~4 , before me, ~ L~-~~Notary Public, personally appeared Karen
Siegfriedt, who proved to me on the basis 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 person, or entity upon behalf of which the person
acted, executed the instrument.
certify under PENALTY OF PERJURY under the laws of the State of Califomia that the foregoing
paragraph is true and correct-
WITNESS my hand and official seal. CA1M/ L. CHANDLER
ComrtlYfon 11619814
Signatur Seal) ~ ~o C~ _
STATE OF CAL ORNIA MyCoenstl~pMalbvll,
COUNTY OF SA T CLARA r~w
On /D before me, .~~~e,,.~/\,oc Notary Public, personal) a
~z.~o`~~i~. ~ o r4or~who proved to me'~on a basis of satisfacto y PPeared
ry 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 person, or 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. CA1HY L. CHANDLER
_ CwrvrYWOn ~ 1619814
Signatur al) tro/aty PabYe - CollfortYa
tar,.o Cta-a CaxNy
STATE OF CAL RNIA MyCome~.E~pYrtslbvll,
COUNTY OF SANTA CLARA
On before me, Notary Public, personally appeared
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/she executed the same
in his/her authorized capacity, and that by his/her signature on the instrument the person, or 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.
Signature (Seal)
STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
On before me, Notary Public, personally appeared
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/she executed the same
in his/her authorized capacity, and that by his/her signature on the instrument the person, or 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.
Signature (Seal)
E>
August 24, 2009
Job No. 09002
LEGAL DESCRIPTION
A PORTION OF SECTION 24, T. 7 5., R 2 W., M.D.B.aXcM. APN: 359-20-28
CITY OF CUPERTiNO
TILE LAND REFERRED HEREIN BELOW IS SITUATED IN THE CITY OF
CUPERTINO, COUNTY OF SANTA CLE~RA, STATE OF CALIFORNIA, AND IS
DESCRIBED AS FOLLOWS-
Beginning in the Southerly line of the parcel described in the deed to the Protestant
Episcopal Bishop ofCalifornia by deed recorded September 19, 1961, Book 5301
Official Records, Page 1 70, at the intersection thereof with the Easterly line of the parcel
described in the instrument of dedication to the City of Cupertino, recorded July I O,
1964, Book 6577 Official Records, Page 252;
Thence North along said Easterly line 360.(12 feet;
Thence along a tangent curve to the right with a radius of 30 feet, through an angle of
89°58'02", an arc distance of 47.1 1 feet to a Southerly line of said last mentioned
parcel;
Thence N. 89°58'02" F_., along said Southerly line 305.59 feet to the West line of
the parcel conveyed to Cupertino Church of the Nazarene, Cupertino, California,
by deed recorded June 2, 1965, Book 6979 Official Records, Page 80;
Thence S. O°0'08" E., along said West line 389.76 feet to the Southerly line of the
parcel tirst above referred to;
Thence S. 89°55'32" W., along said line 335.59 feet to the Point of Beginning
EXHIBIT "A"
Page I of 1
September 3, 2009
MEI#09002
ST JUDE APOSTLE EPISCOPAL CHURCH
APN:.359-20-028
STORMWATER MANAGEMENT FACILITY EASEMENT to
CITY OF CIUPERTINO, CA
LEGAL DESCRIPTION
STORM DRAIN INFILTRATOR AREA
(See Mission Engineers, Inc. Dwg. No. S-14262)
A Storm Drain Infiltrator Area within that certain portion of real property located in the
City of Cupertino, County of Santa Clara, State of California described as follows:
A portion of the (ands described in the Deed of Trust filed on July l4, 1 967 in Book 7784
at Page 567 Santa Clara County Official Records, said portion being more particularly
described as follows:
Commencing at a point Tying on the Easterly boundary line of South Stelling Road at the
Southwesterly corner of said lands;
Thence, from said Point of Beginning along; the Southerly boundary line of said lands
North 89° 55' 32" East, 76.93 feet;
'Thence, leaving said Southerly boundary line at a right angle North 00° 04' 28" West,
1 6.00 feet to the "Prue Point of Beginning;
Thence continuing, North 00° 04' 28" West. 28.00 feet;
Thence, at a right angle North 89° 55' 32" East, 24.00 feet;
Thence, at a right angle South 00° 04' 28" East, 28.00 feet to a line drawn parallel to and
distant 16.00 feet from said Southerly boundary line;
Thence, along said line drawn parallel South 89° 55' 32" West, 24.00 feet to the True
Point of Beginning and containing 672 square feet, more or less_
EXIiIBI"f "B"
Page 1 of 2
10•!0S/2009 16:07 14082551860 S S RUDD PAGE 02/03
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355 Reed St. 5pnto Clora, Cai3f 95050 (4p8) 727-8262 FA~:_ (408) 727-$Qgg
RESOLUTION NO. 09-167
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
AUTHORIZING EXECUTION OF A STORMWATER MANAGEMENT
FACILITIES OPERATION AND MAINTENANCE AGREEMENT, ST. JUDE THE
APOSTLE EPISCOPAL CHURCH, 20920 MCCLELLAN ROAD, APN 359-20-028
WHEREAS, there has been presented. to the City Council a proposed stormwater
management facilities operation and maintenance agreement between the City of Cupertino and
owner, St. Jude the Apostle Episcopal Church, 20920 McClellan Road, APN 359-20-028, as
described in Exhibits "A" and "B", 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 o£the City of Cupertino.
PASSED AND ADOPTED at a regul.n- meeting of the City Council of the City of
Cupertino this 20th day of October, 2009, by the following vote:
Vote
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
Members of the C:~! Council
Mahoney, Sandov,sl, Santoro, Wang, Wong
None
None
None
City Clerk
APPROVED: ~
i
/ /
~ `~~~
ayor, City of C rtino