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13-055 Maintenance Agreement for Stormwater Management Facilities Operation, 10101 North Wolf Rd Sears Roebuck APN 316-20-081 and 316-20-082 DOCUMENT: 22132169 Pages 10 Fees. . . . + No Fees RECORDING REQUESTED BY: HI I Taxees. City of Cupertino AMT PA I D WHEN RECORDED, MAIL TO: REG I NA ALCOMENDRAS RDE # 009 SANTA CLARA COUNTY RECORDER 3/13/2013 Recorded at the request of 3 22 PM City Clerk's Office C i y City of Cupertino 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's 316-20-080, 316-20-081 & 316-20-82 10101 North Wolfe Road, Cupertino, CA 95014 Sears, Roebuck and Co., a New York corporation pit Original El For Fast Endorsement -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 10101 North Wolfe Road, Cupertino, CA 95014 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:March 13, 2013 By: Kirsten Squarcia Deputy City Clerk City of Cupertino RECORDED AT THE REQUEST OF ) and ) WHEN RECORDED RETURN TO: ) SPACE ABOVE FOR RECORDER'S USE ONLY STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTENANCE AGREEMENT APN's 316-20-080,316-20-081 & 316-20-082 10101 North Wolfe Road,Cupertino, CA 95014 THIS STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTENANCE Agreement (the "Agreement") is made and entered into this ' — day of , 2013, by Sears, Roebuck and Co., a New York corporation (hereinafter referred to as"Covenantor") and the City of Cupertino(the "City"). RECITALS: This Agreement is made and entered into with reference to the following facts: WHEREAS, 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"); WHEREAS, the Covenantor is the owner of a certain tract or parcel of land more particularly described in Exhibit A attached hereto(the"Property"); WHEREAS, Covenantor entered into a lease (the "Lease") for a portion of its building located on the Property; WHEREAS, in connection with improvements associated with the Lease, stormwater conditions on the Property have been altered to incorporate drainage improvements to the Property; WHEREAS, in order 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 facilities ("Facilities"), more particularly described and shown in the Stormwater Management Plan prepared by BKF Engineers and dated May 23, 2012, which plans and any amendments thereto (collectively, the "Stormwater Management Plan"), are on file with the Public Works Department of the City of Cupertino, California, and are hereby incorporated by reference; DM LI B-#394348-v8-Cupertino CA (Stormwater Fad lity Operation_and Management_Agreement) WHEREAS, Covenantor acknowledges and agrees that the Facilities qualify as an off- site improvement to the Property required by the City and Covenantor shall construct at Covenantor's sole cost and expense, the Facilities in accordance with the Stormwater Management Plan; and WHEREAS, 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 Property 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 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: At their sole cost and expense, Covenantor , its successors and/or assigns, shall construct 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. Operation and Maintenance: At their sole expense, the Covenantor, its successors and/or assigns, shall 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. 4. Facility Modifications: At their sole expense, the Covenantor, its successors and/or 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. 5. 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 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. 6. 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 DMLIB-#394348-v8-Cupertino CA(Stormwater_Facility_Operation_and_Management_Agreement) 2 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. 7. 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 and/or intentional acts of any of the City's employees, agents, representatives, contractors, vendors, or consultants. 8. 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 Agreement as provided above. 9. Property Transfer: Nothing herein shall be construed to prohibit a transfer by the Covenantor to subsequent owners and assigns. 10. Attorneys' 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. 11. 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. DMLIB-#394348-v8-Cupertino_CA (Stormwater_Facility_Operationand_Management Agreement) 3 12. 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 fully expressed herein. 13. 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. 14. 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. 15. 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. 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 expense. [Remainder of Page Intentionally Left Blank; Signatures Appear on the Following Page] DMLIB-#394348-v8-Cupertino_CA(Stormwater_Facility_Operation_and_Management_Agreement) 4 Executed the day and year first above written. SEARS, ROEBUCK • ) CO., a New York CITY OF CUPERTINO corporation I le B I. �' B �-_ Y: By: Name: �� Ian F. aw Name: 77,--t Title: uthorized Representative Title: "stn G{-a-/- � �(0(cL DMLIB-#394348-v8-Cupertino CA(Stormwater_Facility_Operation and Management_Agreement) 5 STATE OF ILLINOIS ) )SS COUNTY OF COOK ) The foregoing was acknowledged before me this j day of 11 2013 by NC‘. L t YL�� ! 1`; r t f ''(i,t,<, ,1,:10. . of Sears, Roebuck and Co., a New York corporation. `{YP�Y�t AL, ?n s'<-, ', GWEN A. SANDSTROM „_AIIh ��c JJ C—__ 1,[; .'� OFFICIAL SEAL otary Public ti%` T Notary Public,State of Illinois J My Commission Expires ' Bois` July 26,2015 My Commission Expires: 7- �2C,1 STATE OF CALIFORNIA ) )SS COUNTY OF SANTA CLARA ) The foregoing was acknowledged before me this /2 Tic( day of MI-4-&/-1 2013 by 7'4.) M Q o 4e-.7 _ of the City of Cupertino, California. KIRSTEN RENEE SODA CIA Commission#t 1906898 Notary Public-California I Notary Public Santa Clara County My Comm. Expires Oct 4,2014 My Commission Expires: (9cr ' 2°/S�_ DMLIB-#394348-v8-Cupertino_CA (Stormwater Facility_Operation and_Management Agreement) 6 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§1189 4 State of California County of .SA frI f a am_ ✓, } .i On,/lft v6 IL t Zola before me, !�(f-s-le 4-1 ,e-+-1 e c 1 v A-,-c1'� 6 Nb I/-/ l°v6/r.c, Date Here Insert N and Title of the Officer fi personally appeared T n B a rvf c h Name(s)of Signer(s) who proved to me on the basis of satisfactory 2.;4 evidence to be the person4sj whose name(s1 hre fi subscribed to the within instrument and acknowledged fi to me that Oa he/they executed the same in rer/their au horized capacity�s`), and that by q er/their signature(,s1 on the instrument the fi personX, or the entity upon behalf of which the person acted, executed the instrument. 0•:.,. KIRSTEN RENEE SOUARCIA I certify under PENALTY OF PERJURY under the kg �- Commission 0 1906898 laws of the State of California that the foregoing II' � Sr Notary Public-California i ∎. 44, Santa Clara County paragraph s true and correct. kg kg M Comm. Ex ires Oct 4,2014 kg WITNESS my hand and official seal. kg Signature: V` `-tee 4-- Place Notary Seal Above Signature of Notary Public fi OPTIONAL fi Though the information below is not required by law,it may prove valuable to persons relying on the document 2, and could prevent fraudulent removal and reat`achment of this form to another document. Description of Attached Document ? fi Title or Type of Document:-S74,.im wv /1'1a n4,e A ee,- / -(4.6<s. . 1U Prl-a-6o,, aprebila/h1-c.,,�vt<< PA Document Date: �u v� / 2-0/3 _ Number of Pages: 7-' Signer(s) Other Than Named Above: 4(ct ry 1. S'' I S V) ,¢v f4 o'-,a e rrs ( /1 �' Capacity(ies) Claimed by Signer(s) fiSigner's Name: Signer's Name: fi ❑ Corporate Officer—Title(s): C]Corporate Officer—Title(s): F ❑ Individual RIGHT THUMBPRINT ❑Individual RIGHTTHUMBPRINT Z OF SIGNER OF SIGNER fi ❑ Partner—❑Limited ❑General Top of thumb here Cl Partner—❑Limited ❑General Top of thumb here fi ❑ Attorney in Fact Cl Attorney in Fact x fi ❑• Trustee Cl Trustee fi ❑ Guardian or Conservator El Guardian or Conservator x fi ❑ Other: ❑Other: fiSigner Is Representing: Signer Is Representing: ,) fi 3 ©2010 National Notary Association•NationalNotary.org•1-800-US NOTARY(1-800-876-6827) Item#5907 EXHIBIT A All that real property, situated in the City of Cupertino, County of Santa Clara, State of California, and described as follows: A PORTION OF THE QUITO RANCHO,AND BEING A PORTION OF THE 39.39 ACRE TRACT OF LAND DESCRIBED IN THE DEED TO VALL.CO PARK., LTD., RECORDED OCTOBER 19, 1967 IN BOOK 7898 OFFICIAL RECORDS, PAGE 248,SANTA CLARA COUNTY RECORDS,AND DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION 0:THE MONUMENT LINE OF STEVENS CREEK BOULEVARD, BEING 45 FEET SOUTHERLY FROM THE NORTHERLY LINE THEREOF, WITH THE CENTER LINE OF WOLFE ROAD, 108 FEET WIDE; THENCE NORTH 1° 5' 14" WEST,ALONG SAID CENTER LINE OF WOLFE ROAD, 106.37 FEET; THENCE SOUTH 88° 54' 46"WEST, 54 FEET TO THE WESTERLY LINE OF WOLFE ROAD AT THE NORTHERLY TERMINUS OF A CURVE HAVING A RADIUS OF 60 FEET,AND THE ACTUAL POINT OF BEGINNING; THENCE NORTH 1° 5' 14"WEST,ALONG THE WESTERLY LINE OF WOLFE ROAD,819.02 FEET; THENCE SOUTH 88° 54' 46" WEST, 847.26 FEET TO AN EASTERLY LINE OF TRACT NO. 2086, MAP FILED IN BOOK 112 OF MAPS, PAGE 40; THENCE SOUTH 0°42'55" EAST,ALONG SAID EASTERLY LINE AND ITS SOUTHERLY PROLONGATION, 869.53 FEET TO THE NORTHERLY LINE OF STEVENS CREEK BOULEVARD, BEING 45 FEET NORTHERLY OF THE MONUMENT LINE THEREOF; THENCE NORTH 89° 36' EAST, ALONG SAID NORTHERLY LINE,792.24 FEET; THENCE ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 60 FEET;THROUGH AN ANGLE OF 90° 41' 14"AN ARC DISTANCE OF 94.96 FEET TO THE ACTUAL POINT OF BEGINNING. APN: 316-20-080, 316-20-081 and 316-20-082 DMLIB-#394348-v8-Cupertino_CA(Stormwater Facility_Operation_and_Management_Agreement) 7