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14-058 Stormwater Management Facilities Operation and Maintenance Agreement, Main Street Cupertinop, APNS 316-20-078, 079 & 085 DOCUMENT: 22567429 Pages: 12 RECORDING REQUESTED BY: I Fees. No Fees 11 I i_ I Copees. City of Cupertino AMT es D WHEN RECORDED,MAIL TO: REGINA ALCOMENDRAS RDE # 025 SANTA CLARA COUNTY RECORDER 4/14/2014 City Clerk's Office Recorded at the request of 12:24 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 Main Street Cupertino APN 316-20-0178, 079 & 085 Original 13 For Fast Endorsement i RECORDED AT THE REQUEST OF ) and WHEN RECORDED RETURN TO: ) SPACE ABOVE FOR RECORDER'S USE ONLY STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTENANCE AGREEMENT APNS 316-20-078, 079 & 085 Main Street Cupertino THIS STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTENANCE AGREEMENT ("AGREEMENT") is made and entered into this X71ay of iM A r-c-n , 2014, by Main Street Cupertino Aggregator, LLC, a Delaware limited liability company, (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 "P:R.OPERTY"). 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, stormwa.ter management facilities ("FACILITIES"), more particularly described and shown in the Stormwater Management Plan prepared by Sandis Civil Engineers and dated August 2013, which plans and any amendments thereto, are on file FINAL -1- 2/6/14 N . 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: I. 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 Ovmer, 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 assi;;ns, 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 s, 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 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 FINAL -2- 2/6/14 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 remedies as provided by law, including, but not limited to, civil and criminal remedies set forth in Sections 9.18.190, 9.18.230 and 9.18.250 of the ORDINANCE, or as subsequently amended. 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 FACILII['IES 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 responsibilitics 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 provision 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 FINAL -3- 2/6/14 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. 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 fully 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, there 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/oar assigns, shall record in the Clerk's Office, at its/their expense. FINAL -4- 2/6/14 Executed the day and year first above written. Main Street Cupertino Aggregator, L a Delaware limited liability company Name: 7--�-: Title: o�L.�Z .v?/� 2 _- (Notary acknowledgment to be attached) CITY OF CUPERTINO By: _ Name. mrf'Borden Title: Director of Public Works FINAL -5- 2/6/14 CALIFORNIA ALL-PURPOSE CERTIFICATE OF AC KNOWLEDGMENT State of California County of <+A On before me, l t �t�_ Ao7,472 t/ 09 . L!G , , —� t ( ere insert name and.titic f the officer) 'personally appeared V'rm /N-u who.proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/arsubscribed to the within instrument and acknowledged to me that hclgKee/may executed the same in his/lyef/tWr authorized capacity(ies), and that by his/l�WtVfr signatures) on the instrument'the person(§), 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. KATIE YAO +� Commission # 1914559 WITNESS my hand and official seal. i , "+�; Notary Public -California z z ".2'y San Mateo County r My Comm. Expires Dec 5, 2014 Signature of Notary Public (Notary Sea]) ' ADDITIONAL OPTIONAL INFORMATION INSTRUCTIONS FOR COMPLETING THIS FORM Snp ack»owledgnrew coinhleted in California must crinlaia verbiage exactly as DESCRIPTION OF THE ATTACHED DOCUMENT appears above in the notary section or a separate aclarowledgment fonn must be properly completed and'.attached to that document. The only exception is ii a document is.;ro be recorded outside of California. /n such instances, any aber`native (Title or description of attached document) acknbwledgrneint verbiage as nrgv be printed on such a document so long as the verbiage.does not require'Ihe.notui}+to do something that is illegal jb notary otary in California (i.e. cerif ying the authorized capacity of the signet). Please check the (Title or description of attached document continued) docun new ca•efull��for•proper•notarial wording and.aitach this fgnn if required. o State and County information must be the State and County where the document Number of Pages Document.Date signer(s)personally appeared before the notary public for acknowledgment. o Date of notarization must be the date..thatthe.signer(s)personally appeared which must also'be the same date the acknowledgment is completed. (Additional information) e The notary public must print his or hcrname as it appears within his or her commission followed by a comma and then your title(nota.ry public), o Print the name(s) of document signer(s) who personally appear at the time of notarization. CAPACITY CLAIMED BY TI-LE SIGNER u Indicate the correct singular or plural forms by crossing off incorrect forms(i.e. ❑ Individual(s) l;e/she/tHey is/ere)or circling the Correct forms.Failure to correctly indicate this information may lead to rejection of document recording. ❑ Corporate Officer a The notary seal impression must be clear and photographically reproducible. impression must no�cover text or lines. if seal impression smudges,rc-scat if a (Title) sufficient area permits,otherwise complete a different acknowledgment form. ❑ Partner(s) • Signature of the notary public must match the signature on file with the office of the county clerk. El Attorney-in-Fact Additional information is not required but could help to ensure this ❑ Trustee(s) acknowledgment is not misused or attached to a different document. ❑ Other Indicate title or type of attached document,number of pages and date. Indicate the capacity claimed by the signer. If the claimed capacity is a L= corporate officer,indicate the title(i.e.CEO,CFO,Secretary). Securely attach this document to the signed document 2008 Version CAPA v12.10:07 8100-873-9865 www:NotaryClasscs.com CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 ��`.<=.cr`�c`.cc.cc.c<)c--cceccc-�f'.<—�6c--^cc—:r.;e_ccr.�:c.,M.i-cc-:(`.c�c cue c c-.c-ccr•.c:r..cc:c-_ccr..ec.�:c.�<.�;rcE`,c�f`.c=:c�,cr..c�r..cr:.cec-;C'.i^rc�',c�.crc�.c(`.cct.c�,r� State of California County of 1 '/ On Aerr ! before me, ���?P nce .� v .c�,a . /l/o7�a r,, (°v G (' I Date Here Insert Nw&and Title of the Offic6r 1 personally appeared t.yt r., B���� Name(s)of Signer(s) �) who proved to me on the basis of satisfactory fi re evidence to be the person(s)'whose name(,gcol subscribed tot ithin instrument and acknowledged 4 to e that(h he/they executed the same in i er/their authorized capacity0s), and that by 5hi er/their signature(4 on the instrument the person�s'f, or the entity upon behalf of which the fi person(Wacted, executed the instrument. KIRSTEN RENEE SOUARCIA I certiby under PENALTY OF PERJURY under the fiCommission# 1906898 laws of: the State of California that the foregoing fi(, z .-® Notary Public -California z paragraph is true and correct. ) Z ' Santa Clara County My Comm. Expires Oct 4, 2014 WITNI=SS my hand and official seal. fie Signarure: � -- ) (p: Place Notary Seal Above Sighature of Notary Public '? fi 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. K Description of Attached Document Title or Type of Document: S�'/w,wg�v��a aq qe%c.�e..'f Ar,,, /r 75'rS' Document Date:/"' �+ Z7 ?.� ��/ _ Number of Pages: g %S t. , Signer(s) Other Than Named Above: /p e_-,4c✓ tr-'e4 y Capacity(les) Claimed by Signer(s) Signer's Name: Signer's Name: fi ❑ Corporate Officer—Title(s): ❑Corporate Officer—Title(s): ❑ Individual _ - ❑ Individual - ❑ Partner—❑Limited ❑General Top of thumb here ❑ Partner—❑ Limited ❑General Top of thumb here Y ❑ Attorney in Fact ❑Attorney in Fact fi ❑ Trustee ❑Trustee fi ❑ Guardian or Conservator ❑Guardian or Conservator fi ❑ Other: ❑Other: :S fi Signer Is Representing: Signer Is Representing: I fi fi �c.c O 2010 National Notary Association•NationalNotary.org•1-800-US NOTARY(1-800=876-6827) Item#5907 EXHIBIT"A" TRACT NO. 10172 MAIN STREET CUPERTINO OVERALL PROPERTY BOUNDARY j ALL THAT CERTAIN REAL PROPERTY LYING IN THE CITY OF CUPERTINO, COUNTY OF SANTA CLARA AND STATE OF CALIFORNIA, BEING PARCEL B OF DOCUMENT NUMBER 15128280, PARCEL A OF DOCUMENT NUMBER 22385299, ALL IN SANTA CLARA COUNTY RECORDS, TOGETHER WITH THAT PORTION 10F FINCH AVENUE LYING NORTH OF THE NORTH RIGHT OF WAY'LINE OF STEVENS CREEK BOULEVARD,AND SOUTH OF THE SOUTHERLY RIGHT OF WAY LINE OF VALLCO PARKWAY,AS SHOWN ON THE PARCEL MAP FILED ON AUGUST 3, 1987 IN BOOK 576 01= MAPS AT PAGES 31 AND 32, SANTA CLARA COUNTY RECORDS, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWEST CORNER OF SAID PARCEL B;. THENCE NORTH 00 024'00"WEST ALONG THE WEST LINE OF SAID PARCEL B,A DISTANCE OF 527.77 FEET; THENCE NORTH 88 054'46" EAST ALONG THE NORTH LINE OF SAID PARCEL B,A DISTANCE OF 195.49 FEET; THENCE NORTH 01605'14"WEST ALONG THE WEST LINE OF SAID PARCEL B,A DISTANCE OF 304.23 FEET TO A NON TANGENT INTERSECTION WITH THE ARC OF A CURVE, CONCAVE TO THE SOUTHWEST, IN THE SOUTHERLY LINE OF VALLCO PARKWAY; THENCE SOUTHEASTERLY ALONG THE SOUTHERLY LINE OF VALLCO PARKWAY AND ALONG THE ARC OF SAID CURVE, TO THE RIGHT, WHOSE CENTER BEARS SOUTH 03 0120'52"WEST FROM SAID POINT OF INTERSECTION,WITH RADIUS OF 595.00 FEET AND CENTRAL ANGLE OF 28 024'31" FEET, FOR AN AIRC DISTANCE OF 295.02.FEET TO A POINT OF TANGENCY; i THENCE SOUTH 58°1.4'37' EAST ALONG THE SOUTHERLY LINE OF VALLCO PARKWAY,A DISTANCE OF 503.70 FEET TO A POINT OF CURVATURE OF A TANGENT CURVE, CONCAVE TO THE NORTHEAST; THENCE SOUTHEASTERLY ALONG THE SOUTHERLY LINE OF VALLCO PARKWAY AND ALONG THE ARC OF SAID CURVE, TO THE LEFT,WITH RADIUS OF 705.00 FEET AND CENTRAL ANGLE OF 32°13'39", FOR AN ARC DISTANCE OF 396.55 FEET TO A POINT OF TANGENCY; THENCE NORTH 89 031'44" EAST ALONG THE SOUTHERLY LINE OF VALLCO PARKWAY,A DISTANCE OF 215.03 FEET TO THE POINT OF CURVATURE OF A TANGENT CURVE, CONCAVE TO THE SOUTHWEST; THENCE SOUTHEASTERLY ALONG THE ARC 01=SAID CURVE,TO THE RIGHT,WITH RADIUS OF 25.00 FEET AND CENTRAL ANGLE OF 90 000'00" FOR AN ARC DISTANCE OF 39.27 FEET TO A POINT OF TANGENCY; 1 OF 3 I THENCE SOUTH 00 028'16" EASTALONG THE V/EST LINE OF TANTAU AVENUE, A DISTANCE OF 277..00 FEET TO A POINT OF CURVATURE OF A TANGENT CURVE, CONCAVE TO THE NORTHWEST; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE, TO THE RIGHT,WITH RADIUS OF 50.00 FEET AND CENTRAL ANGLE i:)F 90°00'00"FOR AN ARC DISTANCE OF 78.54 FEET TO A POINT OF TANGENCY; THENCE SOUTH 89 031'44"WEST ALONG THE NORTH LINE OF STEVENS CREEK BOULEVARD,A DISTANCE OF 304.37 FEET TO THE POINT OF CURVATURE OF A TANGENT CURVE, CONCAVE TO THE SOUTH, i THENCE WESTERLY ALONG THE NORTH LINE OF STEVENS CREEK BOULEVARD,,AND i ALONG THE ARC OF SAID CURVE, TO THE LEFT,WITH RADIUS OF 2000.00 FEETAND CENTRAL ANGLE OF 4 057'49 FOR AN ARC DISTANCE OF 173.26 FEET TO A TANGENT INTERSECTION WITH THE ARC OF A REVERSE CURVE, CONCAVE TO THE NORTHWEST; THENCE WESTERLY ALONG THE NORTH LINE OF STEVENS CREEK BOULEVARD,AND ALONG THE ARC OF SAID CURVE, TO THE RIGHT WITH RADIUS OF 2000.00 FEET AND CENTRAL ANGLE OF 4 057'49" FOR AN ARC DISTANCE OF 173.26 FEET A POINT OF TANGENCY; THENCE SOUTH 8,9031,44"WEST ALONG THE NORTH LINE OF STEVENS CREEK BOULEVARD., A DISTANCE OF 419.21 FEET; THENCE SOUTH 89 036'00 WEST ALONG THE NORTH LINE OF STEVENS CREEK BOULEVARD,A DISTANCE OF 392.96 FEET TO THE POINT OF BEGINNING. CONTAINING 814,600 SQUARE FEET OR 18.70 ACRES,, MORE OR LESS. EXCEPTING THEREFROM THE UNDERGROUND WATER WITH NO RIGHT OF SURFACE i ENTRY AS GRANTED TO CALIFORNIA WATER COMPANY, BY DEED RECORDED DECEMBER 7, 1987 IN BOOK K381 OF OFFICIAL. RECORDS, PAGE 1279. THE LAND DESCRIBED HEREON IS SHOWN ON THE ATTACHED PLAT, EXHIBIT"A"SHEET 3 OF 3,AND IS BY REFERENCE, MADE A PART THEREOF. February 4, 2014 FILEc212097 BOUNDARY.013114.doc Q. PLS o j< rio. 70z;7 Exp. 12/31r14 CAO JJ, G�/ G 2OF3 � | � | i / | | | � ) 9 ' LOT 1, YRACT NO, 9655- LANDS OF M—r-fF?()p0j7.JTAN A-f ca L4 DEVELOPMENT 1, LLC — CA N01-05;74-"�17,304.2S 711 to M 5..949± ACRES Aj SCALE: 1"=200 M co T6 BE VA�ATEI) LOVE TABLE �pt P 11.454± ACRES AND CA Ln 01 PLS 101 NO. 7047 41- Expw 12/31/14 j 00 11) L0 CD SOO'28'16"E 277.00' PLAT TO ACCOMPANY LEGAL DESCRIPTION EXHIBIT "A SUAVE AS 5CAlf: 1"-200*-MAIN STREET CUPERTINO 'R;0'0: PROPERTY BOUNDARY 936 E.Duane Avenue I Sunnyvale,CA 94085 1 P.408-636.0900 1 F.408.636.0999 1 www.sandis.net 3 NQ: CUPERTINO, CALIFORNIA � SUNNYVALE ROSEVILLE OAKLAND 212097 212097 / ( | / _ "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. Main Street Cupertino to the City of Cupertino, a governmental agency, is hereby accepted by the order of the Public Works Director, and the grantee consents to recordation thereof by its duly authorized officer. Dated:April 8, 2014 Andrea Sari/6"S Senior Office A";sistant