CC Resolution No. 10-024 Stormwater Management Facilities Operation and Maintenance Agreement, 19333 Vallco ParkwayRESOLUTION NO. 10-024
A RESOLUTION OF THE CITY COUI~~CIL OF THE CITY OF CUPERTINO
AUTHORIZING EXECUTION OF A STORUIWATER MANAGEMENT FACILITIES
OPERATION AND MAINTENANCE AGREEMENT, APPLE INC.,
19333 VALLCO PARKWAY, APN(S) 316-20-075 AND 316-20-076
WHEREAS, there has been presented to the City Council a proposed stormwater
management facilities operation and maintenance agreement between the City of
Cupertino and owner, Apple Inc., 19333 Vallco Parkway, APN(s) 316-20-075 and 316-
20-076, as described in Exhibit "A", and said agreement having been approved by the
City Attorney;
NOW, THEREFORE, BE IT RESOLVED THAT the Mayor and the City Clerk
are hereby authorized to sign the aforementioned agreement on behalf of the City of
Cupertino.
PASSED AND ADOPTED at a speci~il meeting of the City Council of the City of
Cupertino this 2nd day of February, 201 O, by the following vote:
Vote
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
Members of the C~ Council
Wang, Wong, Chang, Mahoney, Santoro
None
None
None
City Clerk
APPROVED:
RECORDING REQUESTED BY AND
WHEN RECORDED PLEASE RETURN TO:
Apple Inc.
1 Infinite Loop, MS 4-LAW
Cupertino, CA 95014
Attn: Real Estate Counsel
SPACE ABOVE FOR RECORDING'S USE ONLY
STORMWATER MANAGEMENT FACILITIES
OPERATION AND MAINTENANCE AGREEMENT
County Assessor's Parcels: 316-20-075 and 316-20-076
THIS STORMWATER MANAGEMENT FACILITIES OPERATION~_A~~ND MAI T N NCE
AGREEMENT ("AGREEMENT") is made and entered into this~7°day of r
2009 by Apple Inc, a California corporation (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 c~~nstruct certain improvements on the
PROPERTY that may alter existing storm~,vater 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, t:he 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 Kier 8z Weight Civil Engineers 8z Surveyors Inc and
dated September 18. 2009. 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 i:he FACILITIES in strict accordance with
the Stormwater Managemet Plan .end 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: A.t reasonable times and in a reasonable
manner as provided in the ORDNANCE 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 inspec~ the FACILITIES in order to ensure that
the FACILITIES are being properly maintained, are continuing to perform in
an adequate manner and are iri 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, tPle CITY shall have the right, under the
Stormwater Management Easeme~zt 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, it=s 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
COVENANTORS, 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 intention~il conduct or the negligence or intentional
acts of any of the CITY'S employ~:es, 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 sa_!e, 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 the extent such obligations and responsibilities are
applicable to that portion of the PROPERTY included in such Transfer, b-x-t
soh release ~-1.-.77 T.,, 7 ,-~:~;,-.,,,...a u~en~he T..~ F
17 ~I1 •-•hl:a-. r' .-7 '7-.'1'r' c1-,~ .-.-7 ...] r _ F T_
~~
lienef~t of the 6ITY Susl-t vvr~er~-a-g~' ^ t^ ~ h„ 1 a ,a tT. T F
EIPC~d er ~nstrl~rnent, T. ''a 'a ~ ~l}e T.--...~. F.-..-.... ~t _ ____ ___ _ __
such deed er instrttn}ent A c-ez~~ecl FE~~e€ s~tshMdeed instrttt~e
.. 7- ~-7+..11 ~ .;.-1~a rte. tL. ~TTV Th.. n ,.~F ~1, ~~
rY
three ~^^*^^^^~- ~h^~~ H applicable to the original COVENANTOR and any
successor Transferee who has ass~imed the obligations and responsibilities
of the COVENANTOR under this AGREEMENT as provided above.
COVENANTOR shall disclose to any prospective Transferee that the
obligations of this AGREEMENT run with the land, as expressed in Section 1,
above, and devolve upon Transferee automatically upon Transfer.
CONVENATOR shall inform the CITY when any such Transfer takes place
and identify the Transferee.
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 t1-,at 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 AGREEMEI`IT 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 coverant contained herein shall not be deemed
to be a continuing waiver of the same or any other covenant contained
herein.
14. Amendment: This AGREEMENT mazy 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.
Executed the day y first above written.
Apple li o orporation (COVENANTOR)
By:
N e• ire..-~ GNU-tS.e.-~.3.•..aT
Title:_ ~z_ t~~¢.~crrslL 2~ t t~
(Notary acknowledgment to be attached)
CITY OF CUPERTINO (CITY)
By:
Name:
Title:
EX~1-17317' °`A>'
REAL PIZOPF,RTY DESCI2IPTI01~'
Real property in the City of Cupertino, Count} of Santa Clara, State of California, described as
follows:
PARCEL A:
ALL OF PARCEL 1, AS SHO~bTN ON THAT CERTAIN PARCEL MAP FILED IN TIIE
OFFICE OF THE RF_CORDER OF THE COLNTY OF SAI~TTA CLARA, STATE OF
CALIFORNIA ON 1~~IARCII 2G, 1979, IN BO~~K 438 OF Mt~PS, PA~:1/S 12. AND 13, AND A
CER"7_IFICATE OF CORRECTION, IKECORI)ED JUNE 15, ] 979 TN BOOK E572, PAGE, 331
OP OFFICIAL RECORDS.
1?ARCEL B:
ALI. OF PARCEL 2, AS SHORN ON THAT CERTAIN PARCEL MAP FILED IN'I'I IE
OFFICE OP' "7T3E RECORDER OF THE COUNTY OF SANTA CL.ARA, STATE OP
CALIFORI~~I:A ON I~~tARCH 26, 1979, IN BOOK 438 OF 1~~1PS, PAGES 12 AND 13, AND A
CERTIFICATE OF CORRECTION, RECORI;~ED JUNE 12, 1979 1N BOOK E572, PAGE 331
OF OFFICIAL RECORDS.
.APN: 3 ] 6-20-U 75 and 316-20-076
CALIFORNIA ~~LL-PURPOSE
ACKNOWLEDGMENT
State of California )
ss.
County of Santa Clara )
On ~~ a-a-, ~9 ,before me Margaret E. Jones, a Notary Public for the
State, personally appeared ~i~~...~ ~-, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person
whose name is /~ subscribed to the within instrument and acknowledged
to met at e -.~-.T._=~ executed the same in his/he~~-~~r authorized
capacity(ies), and that by his/ ~T/il tP~r signature,.(s~}on the instrument the
person; or the entity upon behalf of which the persons 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. _
MARGARET E. JONES
%`"~ A Commission a« 1676634
"~-ate ; - Notary Pubtic -California _~
`f" ~f • ~ Santa Clara County
My Comm. Expires Jui 77, 2010