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14-016 Bollinger Venture, LLC Stormwater management facilities operation and maintenance agreement Tract 10157 Lots 1-15RECORDED AT THE REQUEST OF: WHEN RECORDED RETURN TO: City of Cupertino 103vc1 fai °4 c ,9v C.PC,(T /wv / cal I S a 1 1 DOCUMENT: 22473410 Pages: 6 Fees .... 1'0.00 Taxes... Copies.. AMT PAID 10.00 REGINA ALCOMENDRAS RDE # 005 SAN7A CLARA COUNTY RECORDER 12/17/2013 Recorded at the request of 8:29 AM City -- SPACE ABOVE THIS LINE FOR RECORDER'S USE - STORMWATER MANAGEMENIF FACILITIES OPERATION AND MAINTENANCE AGREEMENT TRACT 10157 THIS STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTENANCE AGREEMENT ( "AGREEMENT ") is made and entered into this /6' if day of 2013, by .Bollinger Venture LLC, a California limited liability company; ,( "COVENANTOR ") and the City of Cupertino ( "CITY ") based on the facts cited herein. COVENANTOR is the owner of all that certain real property located in the City of Cupertino, County of Santa Clara, described as follows: Lots l -5, as shown on the map of Tract No.10157 filed for record on March 27, 2013, in Book 860 ofMaps atPages 21 through 22, inclusive, in the Official Records of the County of Santa Clara, State of California ( "PROPERTY ") - 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 all of 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 maintain, at COVENANTOR'S expense, stormwater management facilities ( "FACILITIES "), more particularly described and shown in the C.3 Stormwater Management Plan prepared by IIME Engineers and dated "November 30,2012", 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 this reference. LITTLE& SAPUTO ATTORNEYS AT LAW 1901 OLYMPIC BOULEVARD, #100 WALNUT CREEK, CA 94596 -5024 (925) 944 -5000 1 12/02/13 E. The CITY has reviewed and approved the C.3 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 C.3 Stormwater Management Plan, the COVENANTOR, hereby covenants and agrees with the CITY as follows: I . Covenants Running With the Land: Property Sub*ect 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, 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 C.3 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 Management :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 FACILIT:[ES 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 C.3 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 or its successors and assigns. 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, as they may be amended from time to time. 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 COV ENANTOR'S, its successors' and /or assigns' construction, operation or maintenance of the FACILITIES except to the extent that such claims, liabilities, actions, causes 2 12/02/13 LITTLE & SAPUTO .ATTORNEYS ATfLAIV 1901 OLYMPIC BOULEVARD, 9100 WALNUT CREEK, CA 94596 -5024 (925) 944 -5000 of action, and damages arise out of or related to the CATY'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 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 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. 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. H. 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. 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 from 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. 3 12/02/13 LITTLE& SAPUTO ATTORNEYS AT LAW 1901 OLYMPIC BOULEVARD, N 100 WALNUT CREEK, CA 94596 -5024 (925)944 -.5000 15. Facilities No Longer Required: 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. Executed the day and year first above written. COVENANTOR CITY OF CUPERTINO Bollinger Venture, LLC; a California limited liability company STATE OF CALIFORNIA T� COUNTY OF % N 1611 By: e ,.t,*� Title: DEBORAH MAGALLANEZ Commission 0 1938001 = Notary Public - California Z Alameda County MY Comm. Ex ires Ma 23, 2015 Notary Public, personally appeared N1(ACVkU11 -W, 1V1%1V1f _ U who proved to me on the basis of satisfactory evidence to be the person -s) whose namo�s)-is /are subscribed to the within instrument and acknowledged to me that /s4e /thay executed the same irl�7her /their authorized capacity(ies), and that by i' /her/their- signatureks)-on the Instrument, the person( -s)-or the entity upon behalf of which the person(s�ted, 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. WITII�ESS my hand and official seal. Signature 4 12/02/13 LITTLE & SAPUTO ATTORNEYS AT LAW 1901 OLYMPIC BOULEVARD,. #100 WALNUT "CREEK, CA 94596 -5024 (925) 944 -5000 STATE OF CALIFORNIA s I COUNTY OF J On , before me; _ , Notary Public, personally appeared 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. WITNESS my hand and official seal. ignature 5 LITTLE & SAPUTO ATTORNEYS-A`T LA IV 1901 OLYMPIC, BOULEVARD, #100 WALNUT CREEK, CA 94596 -5024 (925) 944 -5000 12/02/13 CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County of yl� 17 `/ �+ ,a 14 1 On DeC . 14,2—(3 before me, if i� _� e P Date- Here Insert N e and Title of the Officer personally appeared I-ale ti Name(s),of Signer(s) who proved to me on the basis of satisfactory evidence to be the persons) whose names mare subscribed to the within instrument and acknow'je'dged to me that (h he /they executed the same in (hi ler /their authorized capacityQet), and that by /hi her /their signature�sf on the instrument the l erson,(sy, or the entity upon behalf of which the person,(s) acted, executed the instrument. KIRSTEN RENEE SOUARCIA Commission # 1906896 z I cedify under PENALTY OF PERJURY under the Notary Public - California z laws of the State of California that the foregoing Z .P% a Santa Clara County ' paragraph is true and correct. My Comm. Expires Oct 4, 2014 WITNESS my hand and official seal. Signature: /P Place Notary Beal Above Signature of Notary 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: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General Top of thumb here ❑ Attorrney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: Signer's Name; ❑ Corporate Officer— Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General Top of thumb here ❑ Attorney in Fact ❑'Trustee ❑ Guardian or Conservator ❑ Other: ;signer Is Representing: 0 2010 National Notary Association • National Notary.org • 1- 800 -US. NOTARY (1- 800 - 876 -6827) item nbaui