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17-071 Maintenance Agreement, 10310 North Foothill Boulevard, APN 326-15-096, D&B Legacy, LLCRECORDING REQU ESTED BY: City of Cupertino WHEN RECORDED, MAIL TO: City Clerk's Office City of Cupertino 10300 Torre Avenue Cupertino, CA 95014-3255 NO FEE IN ACCORDANCE WITH GOV. CODE 27383 23667369 Regina Alcomendras Santa Clara County -Clerk-Recorder 06/07/2017 09:57 AM Till es: 1 Fees: 10 .00 Taxes: 0 .00 Total : 0 .00 Pages: 8 (SPACE ABOVE THIS LINE FOR RECORDER'S USE) MAINTENANCE AGREEMENT 10310 North Foothill Boulevard, Cupertino CA APN 326-15-096 "Ji Original D 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___i_s to certify that the interest in real property conveyed by the deed or grant dated May 4, 2017, from 10310 North Foothill Boulevard, Cupertino CA to the City of Cupertino, a governmental agency, is hereby accepted by order of the Public Works Director, and the grantee consents to recordation thereof by its duly authorized officer. Dated: By: May 30, 2017 Lauren Sapudar Senior Office Assistant RECORDED AT THE REQUEST OF ) And ) WHEN RECORDED RETURN TO: ) ) ) ) ) SPAC E ABOV E FOR RECORD ER'S US E ONLY MAINTENANCE AGREEMENT 10310 North Foothill Boulevard, Cupertino CA 95014 APN 326-15-096 ~ THIS MAINTENANCE AGREEMENT ("Agreement") is made and entered into this '1 day of tf\t?.i:, 2017, by D&B Legacy, LLC, a California limited liability company, ("Declarant"), nd the City of Cupertino ("City"). RECITALS: The following recitals are a substantive portion of this Agreement: A. The real property and improvements that comprise of a 15-unit apartment called "North Foothill Boulevard" is located at 10310 N. Foothill Boulevard within the City of Cupertino ("City"), County of Santa Clara, State of California. B . As set forth , the provisions of this Agreement are intended to and shall run with the Project and be binding upon all owners, successors and assigns of the Project, or any portion . C . The purpose of this Agreement is to allocate the costs of maintenance, repair and replacement between Declarant and the City of certain improvements, including landscaping, that is situated on real property owned by City along 10310 N. Foothill Boulevard in front of the Project, and to establish certain criteria and procedures for the accomplishment of maintenance, repair and replacement. NOW, THEREFORE the parties hereto agree as follows: 1. Covenants Running with the Land; Prope1ty Subject to Agreement: All of the real property described in Exhibit "A" shall be subject to this Agreement. It is intended 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 prope1ty described in Exhibit "A" or any portion and shall be for the benefit of each owner of any of the parcels or any portion of the property and shall inure to the benefit of and be binding upon each successor in interest of the owners . Each 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 property, or any portion. 2 . Responsibility for Cost of Repair, Replacement and Maintenance: Declarant, or its successor in interest, shall, at its sole cost and expense, maintain, repair, replace, remove and keep in excellent, like new condition all improvements, paver blocks, pedestrian path, retaining walls, trees , landscaping and irrigation, located on City's prope11y that abuts and fronts the Project and on the portion of the Slope Easement per Instrument No . 3310225 ("the Frontage and Easement Area of the Project") along 10310 N . Foothill Boulevard to back of curb line, excepting therefrom the standard public sidewalk abutting the property line of the Project which shall remain the maintenance responsibility of the City . 3. Definitions of Repair, Replacement and Maintenance: The repair, replacement and maintenance to be undertaken and performed under this Agreement shall include all work necessary to maintain the Frontage and Easement Area of the Project described in paragraph 2 in excellent, like new and useable condition under all weather conditions. The Frontage and Easement Area of the Project shall be maintained to the standards , specifications and condition to whic h, at a minimum, they were originally constructed as evidenced by plans and specifications on file with the City of Cupertino and/or provided to the Declarant. To accomplish the maintenance, Declarant shall either provide licensed, qualified personnel to perform the maintenance work or contract with licensed, qualified companies for this, and any other items necessary to comply with the requirements of this Agreement. 4. Decisions Regarding Perfonnance of this Agreement: All decisions regarding the need for maintenance, the implementation, the removal, and any particular other matters relating to the Frontage and Easement Area of the Project shall be determined by the City. 5. Indemnity: Declarant shall, to the fullest extent allowed by law, defend, indemnify, and hold harmless the City and its officers , officials, agents, employees and volunteers from and against any liability, claims, actions, causes of action or demands whatsoever against any of them, including any injmy to or death of any person or damage to property or other liability of any nature, whether physical, emotional, consequential or otherwise, arising out, pertaining to , or related to the use and landscape maintenance by Declarant or Declarant's employees, officers, officials , agents or independent contractors. of the Frontage and Easement Area of the Project described in paragraph 2. These costs and expenses shall include reasonable attorneys' fees of counsel of City 's choice, expert fees and all other cost and fees of litigation . This indemnity is limited to the extent that the claims, liabilities, actions, causes of action, and damages arise out of the sole negligence of City's employees, agents, representatives, contractors, vendors or consultants . 6. Insurance Requirements : Declarant shall not commence work under this Agreement until it has obtained all insurance required . Declarant shall maintain Worker's Compensation Insurance, and if applicable shall also require all subcontractors to provide Worker's Compensation Insurance . Declarant shall maintain Comprehensive General Liability in an amount of not Jess than $1,000,000.00 7 . 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 for any alleged breach, the prevailing party in the action or arbitration shall be entitled to reasonable attorneys' or arbitrators' fees in addition to all other recoverable costs, expenses and damages. 2 8 . Further Documents: The parties covenant and agree that they shall execute further documents and instructions as shall be necessary to fully effectuate the terms and provisions of this Agreement. 9. 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, which are not fully expressed herein. 10 . 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 which can be separated from the invalid, unenforceable provisions shall, nevertheless, continue in full force and effect. 11. 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. 12 . Recordation: It is anticipated that this Agreement shall be recorded and shall be executed and acknowledged in proper recordable form. 13. Amendment: This Agreement may be amended in whole or in part only by mutual written agreement. Any amendment shall be recorded in Santa Clara County, California . In the event 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 . Executed the day and year first above written. DECLARANT: Managing Manger CITY OF CUPERTINO Director of Public Works Approved as to Form Wandolph Stevenson Hom City Attorney (notary acknowledgement attached) 3 EXIIlBITA LEGAL DESCRIPTION Real property located in the State of California, County of Santa Clara, City of Cupertirio, described as follows: Beginning at the Northernmost comer of that certain 12.31 acre tract of land described in the Deed from Richard J. Wtlso~ et al, to California Pacific Title Insurance Company, a Corporation. dated May 12, 1%0, recorded May 13, 1960 in Book 4794 Official Records, Page 2'Xl, Santa Clara County Records, in the Easterly line of Mountain View-Stevens Creek '.Road; thence from said point of beginning South 4° 39' 45" East along the said Easterly line of Mountain View-Stevens Creek Road for a distance of 408.12 feet; thence at right angles North 85° 20' 15" East 145.00 feet; thence North 47° 59' 40" Eam 119.21 feeuo~a point in the Northeasterly line of said 12.31 acre tract; theJlCe Northwesterly along the Nortreasterly line of said 12.31 acre tract for the two following courses and distances; North 42° 00 2011 West 29.50 feet and North 40° 03' West 383.14 feet to the point of beginning. Excepting therefrom: That portion thereof conveyed to the County of Santa CJam by that certain Dead recorded October 27, 1967 in Book 7907 Page 690 of Official Records and by Deed recorded October 27, 1967 in Book 7907 Page 694 of Official Records, and being more particularly described as follows: Beginning at a point in the Easterly line of Foothill Boulevard, fonnerly Mountain View and Stevens Creek Road ( 40.00 feet wide) from which a granite monument at an angle point in the center line of said Foothill Boulevan:l marking the most Westerly comer of that certain 35.00 acre parcel of land shown on the Map entitled "Map showing the property of Muri F. Eaton, etc." vvhich Map was filed for record In the Office of the Recorder of the Cmmty of Santa Clara, State of California on Januruy 3 l, 1946 in Book 9 of Maps, atPage .14 bears North39° 17 47' West, 34.53 feet; thence from said point ofbeginning along the Northeasterly line of that certain 12.31 acre tract ofland described in the Deed to California Pacific Title Insurance Company, which deed was filed fur record in the office of the above said Recorder on May 13, 1960 in Book 4794 of Official Records, at Page 227 South 39° 17' 4 7" East, 94.56 feet; thence along the arc of a cwve to the right from a tangent which bears South 0° 43'42" West, with a radius of 5455.00 feet, through a central angle of3° 28' 58", an arc distance of331.59 feet to a point in the Northerly line of Tract No. 2769 La Cresta Unit No . 2, the Map of which was filed for record in the office of the above said Recorder on July 11, 1962 in Book 149 of Maps, at Page 23, distant along said Northerly line North 86° 06' 13" East, 38.09feet:fromthe:Easterly lineofFoothill Boulevard (40.00 foetwide); thence South 86° 06' 13 11 West, 38.09 feet to said.Easterly line; thence along saidF.asterly line North3° 53' 47" West, 408.20 fet:t to the point ofbeginning. A..PN: 326-15-096 ' I ,, ! ! i ! F i: r ! I r I! ( I: I CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that documen t. State of California before me, __ (3.~b~n~·~.s+,~·~o~c. __ --y;,~r.~/.~l"l~h~--------' Notary Public, (Here in se rt name and title of the officer) personally appeared Rober::t 'f<oJ ftd?t·ckl , who proved to me on the basis of satisfactory evidence to be the personls1 whose namectTsil/subscribed to the within instrument andAknJ"':le%ed to me t~t~pe't~ execukd the same in{fiRT~~ir authorized capacity~, and that by~r/t~ir signature0) on the instrument the perso~, or the entity upon behalf of which the person~ acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Sigooru,oofNo,a,y r,hli, ~ (Notary Seal) •111111111111111111111111111111111111• . . : CHRISTINA TRINH : fu ~ NOT~~~U~- 1~:iRNA ij ';; SANTA CIARA COUNlY ~ ~ -'! My Commission Explres 02/02/2021 : • • • ! ! , 11111111111111111111 Ill lllllllP ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE A TT ACHED DOCUMENT (Title or de scription of attached document) (Title or description of attached document continued) Number of Pages __ Document Date ____ _ (Additional inform ation) CAPACITY CLAIMED BY THE SIGNER D Individual (s) D Corporate Officer (Title) D Partner(s) D Attorney-in-Fact D Trustee(s) D Other ____________ _ INSTRUCTIONS FOR COMPLETING THIS FORM Any acknowledgment co mpleted in Ca lifornia mus/ con tain verb ia ge exactly as appears above in the 110/a,y sec/ion or a separate acknowledgment form must be properly co mpleted and al/ached lo that docwne11/. Th e only exception is if a document is lo be recorded outside of Ca lifornia. /11 sue/, ins lances, any alternative acknowledg ment verbiage as may be printed 011 sue/, a document so long as the verb iage does 110/ require //,e 11ola1y lo do some//,in g //,a/ is illegal for a notary in California (i.e. certifying //,e autl,orized capacity of //,e sig11e1). Plea se cl,eck the ducume11/ carefully fur proper 110/arial wo rdin g and allac/1 this fo rm if req uired. • State and County infonnati on must be the State and County where th e document signcr(s) personally appeared before the notary public for acknowledgment. • Date of notarization mu st be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). • Print the namc(s) of document signcr(s) who personally appear at the time of notari zation. • Indicate the correct singular or plural forms by crossing off incorrect fonms (i .e . he/she/they, is /am) or circling the correct forms. Failure to correctly indicate thi s infonnation may le ad to rejection of document recording . • The notary seal impression must be clear and photographically reproducible. Impression mu st not cover te xt or lines . If seal impression smudges, re-seal if a sufficient area permits , otherwise complete a different acknowledgment form. • Signature of the not ary public must match th e s ign ature on file with the office of th e county clerk. •!• Additional in formation is not required but could help to ensure this acknowledgment is not misu sed or attached to a different document. •!• Indicate titl e or type of attached document, number of pages and date. •!• Indicate the capacity claimed by the s igner. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO , CFO, Secretary). • Securely attach thi s do cum ent to the signed document C 2004 -2015 ProLink Signing Service, Inc. -All Rights Rc scrwd www.ThcPruLink.com -Nationwide Notary s~·rvict' CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached , and not the truthfulness , accuracy, or validity of that document. State of California } Countyof 5~ ~ } On M~ I~ I Toi:\-before me, J UJ-.,1 fA personally appeared--~-· __ IN--__ ~--~-~----------- 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 PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (No tary Public Sea l) INSTRUCTIONS FOR COMPLETING THIS FORM ADDITION AL OPTIONAL INF Q RM A Tl Q N This form complies wi th c urren t Californ ia statu tes regarding nota,y wording and, DESCRIPTION OF THE ATTACHED DOCUMENT ~~~Q)~ /o.J;,c N. ~ ~cl . (Title or desc ription of attac hed document) Jr? N 3 "'2.-t> -1 $"-D 'T k, (Title or description of attached document conti nued ) Number of Pages A_ Do cument Dat e S / 4-// 1- CAPACITY CLAIMED BY THE SIGNER ~ Ind ividual (s) D Corporate Offi cer (Title) D Partner(s) D Attorney-in-Fact o Trustee(s ) 0 Ot her _________ _ 2015 Version www .NotaryClasses.com 800-873-9865 if needed, sh ould be comple ted and al/ached to th e doc11111e11t. Acknowledg111 e11ts from other s ta tes may be comple ted for do cuments being sent to that state so long as the wording d oes 110/ require th e Californ ia nota,y to violate California notmy law. • State and Co unty info nnation must be th e State a nd Co un ty where th e docum ent s ign er(s) persona ll y appea red be for e the nota 1y public for acknow ledgment. • Date of nota ,i za tion mu st b e th e date that th e s ig ne r(s) persona ll y appeared whi c h must a lso be th e same date th e acknowled gment is compl eted . • The nota,y public must p ,int hi s or her nam e as it a ppears within hi s o r her comm iss ion fo ll owed by a comma and th en yo ur tit le (notaiy pub lic). • Print the name(s) of docum ent s ig ner(s) who persona ll y app ea r a t the time of nota,i za ti on. • Indi cate th e co 1Tec t sin gul a r or p lu ra l fonn s by cross in g off in co JTec t fonns (i.e. he/s he/they, is /are) or circ ling th e coJTec t fo nns. Failure to co1Tec ll y indi ca te thi s info,mation may lead to rejec ti on of doc um ent recordin g. • The no la,y sea l impress ion mu st be c lear and ph otograp hi ca ll y re produ c ibl e. Impress io n mu st not cover tex t or lines. If sea l impress ion s mud ges, re-sea l if a s uffi c ie nt area pennits , othe,w ise complete a differe nt acknow ledgme nt fo rm . • Signature of th e notaiy publi c mu st matc h th e s ig nature on fil e with th e offi ce of the co unty clerk. •.• Add iti ona l infonnati on is not req uired but could he lp lo ens ure thi s acknowledg ment is not mi s used or attached to a different docu ment. •:• In dicate titl e or type of atta c hed docum ent , numb er of pages a nd date. •:• In dicat e th e capac it y c laim ed by th e s igner. If th e c la im ed ca pac it y is a co qiorate officer, indi ca te th e titl e (i.e. CEO, C FO , Sec reta1y). • Sec ure ly attac h thi s document to th e s ig ned document wi th a s tap le .