E-677 Stormwater Management Facilities Operation and Maintenance Agreement, 20580 Homestead Rd APN 326-10-063 DOCUMENT: 21830296 Pages. 10
Fees. . . . * No Fees
RECORDING REQUESTED BY: Taxes. . .
Copies.
City of Cupertino AMT PAID
WHEN RECORDED, MAIL TO: REGINA ALCOMENDRAS RDE # 001
SANTA CLARA COUNTY RECORDER 8/30/2012
City Clerk's Office Recorded at the request of 1 :38 PM
City of Cupertino City
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
APN 326-10-063
20580 Homestead Road
Brokaw Interests, a California limited partnership, as to an undivided seventy
seven and one-half percent (77.5%) tenancy in common interest and Campus
Park Associates, a California limited partnership, as to an undivided twenty
two and one-half percent (22.5%) tenancy in common interest
Er Original
O For Fast Endorsement
RECORDED AT THE REQUEST OF )
and )
WHEN RECORDED RETURN TO: )
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SPACE ABOVE FOR RECORDER'S USE ONLY
STORMWATER MANAGEMENT FACILITIES
OPERATION AND MAINTENANCE AGREEMENT
APN 326-10-063
20580 Homestead Road,Cupertino, CA 95014
THIS STORMWATER MANAGEMENT FACILITIES OPERATION ANDMAINTIENANCE
AGREEMENT("AGREEMENT") is made and entered into this/p day of /���e��/�,,;20/(,
by Brokaw Interests, a California limited partnership, as to an undivided seventy seven and one-
half percent(77.5%)tenancy in common interest and Campus Park Associates, a California
limited partnership, as to an undivided twenty two and one-half percent(22.5%)tenancy in
common interest, (hereinafter 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 Stormwater Pollution Prevention and Watercourse
Protection Ordinance, effective October 15, 2003 (the"ORDINANCE").
B. The COVENANTOR is the owner of a certain tract or parcel of land more particularly
described in Exhibit"A"attached hereto (the "PROPERTY").
C. The COVENANTOR desires to construct 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
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maintain, at COVENANTOR's expense, stormwater management facilities ("FACILITIES"),
more particularly described and shown in the Stormwater Management Plan prepared by Ruth
and Going, Inc. and dated October 17, 2011, 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.
E. The CITY has reviewed and approved the Storm Water Management Plan subject to the
execution of this AGREEMENT.
NOW, THEREFORE, in consideration of the benefit received and to be received by the
COVENANTOR, its successors and assigns, as a result of the CITY'S approval of the
Stormwater Management Plan, the COVENANTOR, hereby covenants and agrees with the
CITY 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 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"("PROPERTY") 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 Installation, Operation and Maintenance: At their sole expense,the
COVENANTOR, its successors and assigns, shall construct, operate and perpetually
maintain the FACILITIES in strict accordance with the Stormwater Management Plan
and any amendments thereto that have been approved by the CITY or the ORDINANCE.
3. Facility Modifications: At their sole expense,the COVENANTOR, its successors and
assigns, shall make such changes or modifications to the FACILITIES as may be
determined as reasonably necessary by the CITY to ensure that the FACILITIES are
properly maintained and continue to operate as originally designed and approved. Any
changes or modifications may be made only with prior written authorization by the
CITY.
4. Facility Inspections by the CITY: At reasonable times and in a reasonable manner as
provided in the ORDINANCE and the Stormwater Facilities Easement Agreement
applicable to the FACILITIES,the CITY , its agents, employees and contractors, shall
have the right of ingress and egress to the FACILITIES and the right to inspect the
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FACILITIES in order to ensure that the FACILITIES are being properly maintained, are
continuing to perform in an adequate manner and are in compliance with the
ORDINANCE,the Stormwater Management Plan and any amendments thereto approved
by the City.
5. Failure to Perform Required Facility Repairs 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 Stormwater
Management Plan and in accordance with the law and applicable regulations of the
ORDINANCE within the time specified in a written notice from the CITY, the CITY
shall have the right, under the Stormwater Management Easement Agreement for the
subject property, to enter the PROPERTY to perform remedial work, for which the
CITY will collect reimbursement for such work from COVENANTOR. In addition,the
CITY may pursue other such remedies as provided by law, including, but not limited to,
such civil and criminal remedies set forth in Sections 9.18.190, 9.18.230 and 9.18.250 of
the ORDINANCE.
6. Indemnity: The COVENANTOR, its successors and assigns, 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 attorneys' fees, arbitration fees or costs and court costs, arising out
of or related to the COVENANTOR'S, its successors' and/or assigns' construction,
operation or maintenance of the FACILITIES 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.
7. Obligations and Responsibilities of COVENANTOR: Initially,the COVENANTOR is
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 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
"Transferee"),the COVENANTOR shall be released of all 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, 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 Transferee 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
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AGREEMENT as provided above.
8. Property Transfer: Nothing herein shall be construed to prohibit a transfer by the
COVENANTOR to subsequent owners and assigns.
9. Attorneys' Fees: In the event that any pally 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.
10. 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.
11. 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 that are not filly expresses herein.
12. 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 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 contained herein.
14. Amendment: 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 most
recently duly executed and recorded amendment shall be controlling.
15. In the event that the CITY shall determine at its sole discretion at any future time that the
FACILITIES are no longer required,then at the written request of the COVENANTOR,
its successors and/or assigns,the city shall execute a release of this AGREEMENT which
the COVENANTOR, it successors and/or assigns, shall record in the Clerk's Office, at
its/their expense.
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Executed the day and year first above written.
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CITY OF CUPERTINO
By: ,...--
Name: -r71„,,. A
Title:D,rP c,-{i..e- 4,.f 2„t(oi;c- [,Ji,,(L-5 _
FINAL -5- 11/25/03
"NO FEE"
City of Cupertino
CERTIFICATE OF ACCEPTANCE is hereby given in order to comply with the
provisions of Section 27383 of the Government Code.
This is to certify that the maintenance agreement with
20580 Homestead Road
and the City of Cupertino, a governmental agency is hereby accepted by the Public Works
Director, and the grantee consents to recordation thereof by its duly authorized officer.
Dated: June 26, 2012
By:
irsten Squarcia -A17---- --
City Clerk's Office
Exhibit A
LEGAL DESCRIPTION
Real property in the City of Cupertino,County of Santa Clara, State of California,described as
follows:
PARCEL ONE:
PARCEL A, SO DESIGNATED AND DELINEATED ON THE PARCEL MAP RECORDED AUGUST 20,
1970 IN BOOK 272 OF MAPS, PAGE 5,SANTA CLARA COUNTY RECORDS.
EXCEPTING THEREFROM THE RIGHT TO PUMP,TAKE OR OTHERWISE EXTRACT WATER FROM
THE UNDERGROUND BASIN OR ANY UNDERGROUND BASIN,AS GRANTED BY SKAGGS PAY
LESS DRUG STORES AND TRANSAMERICA TITLE INSURANCE COMPANY TO THE CITY OF
CUPERTINO, BY QUITCLAIM DEED AND AUTHORIZATION RECORDED APRIL 29, 1970 IN BOOK
8905, PAGE 622,OFFICIAL RECORDS.
PARCEL TWO:
PARCEL 1,AS SHOWN ON THE PARCEL MAP FILED DECEMBER 7, 1988 IN BOOK 594 OF MAPS,
PAGE 9,SANTA CLARA COUNTY RECORDS.
EXCEPTING THEREFROM THE RIGHT TO PUMP,TAKE OR OTHERWISE EXTRACT WATER FROM
THE UNDERGROUND BASIN OR ANY UNDERGROUND BASIN,AS GRANTED BY SKAGGS PAY
LESS DRUG STORES AND TRANSAMERICA TITLE INSURANCE COMPANY TO THE CITY OF
CUPERTINO,BY QUITCLAIM DEED AND AUTHORIZATION RECORDED APRIL 29, 1970 IN BOOK
8905, PAGE 622, OFFICIAL RECORDS.
PARCEL THREE:
PARCEL A,AS SHOWN ON THAT CERTAIN PARCEL MAP FILED FOR RECORD ON MARCH 29,
1977 IN BOOK 391 OF MAPS AT PAGE 46, SANTA CLARA COUNTY RECORDS.
EXCEPTING THEREFROM THE RIGHT TO PUMP,TAKE OR OTHERWISE EXTRACT WATER FROM
THE UNDERGROUND BASIN OR ANY UNDERGROUND BASIN,AS GRANTED BY SKAGGS PAY
LESS DRUG STORES AND TRANSAMERICA TITLE INSURANCE COMPANY TO THE CITY OF
CUPERTINO, BY QUITCLAIM DEED AND AUTHORIZATION RECORDED APRIL 29, 1970 IN BOOK
8905, PAGE 622,OFFICIAL RECORDS.
APN: 326-10-051(Affects Parcel A of Parcel Three);326-10-060(Affects Parcel 1 of Parcel Two)
and 326-10-063(Affects Parcel A of Parcel One)
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County of rzi. i
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ti = Commission# 1818362..
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