CC Resolution No. 10-162 Operation and Maintenance Agreement, 10231 Amelia Court, APN 326-17-017 RESOLUTION NO. 10 -162
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
AUTHORIZING EXECUTION OF A STORMWATER MANAGEMENT FACILITIES
OPERATION AND MAINTENANCE AGREEMENT, KELLY - GORDON
DEVELOPMENT CORP., 10231 AMELIA COURT, APN 326 -17 -017
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, Kelly- Gordon Development Corp., 10231 Amelia Court, APN 326-
17 -017 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 regular meeting of the City Council of the City of
Cupertino this 17th day of August, 2010, by the following vote:
Vote Members of the City Council
AYES: Wang, Wong, Chang, Mahoney, Santoro
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST: APPROVED:
. ili
City Clerk M. r 'r, City of Cupe o
RECORDED AT THE REQUEST OF )
and )
WHEN RECORDED RETURN TO: )
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SPACE ABOVE FOR RECORDER'S USE ONLY
STORMWATER MANAGEMENT FACILITIES
OPERATION AND MAINTENANCE AGREEMENT
County Assessor's Parcel # 326 -17 -017
THIS STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTE ANCE
AGREEMENT ( "AGREEMENT ") is made and entered into this 11day of _ It, `/A , 201 ,
by Kelly- Gordon Development Corp., a California corporation, (hereinafter refe 'd 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 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 Stormwater Management Plan prepared by Nordic
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Engineering Inc. and dated , 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 the FACILITIES in strict accordance with the Stormwater Managemet 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 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
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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, 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.
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, arbiiration 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 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 '.De 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. St.ch 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.
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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.
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, 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.
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Executed the day and year first above written.
(COVENANTOR)
By:
Name: 'Are? 4T: er
Title: 4S•'o�.✓7 _
(Notary acknowledgment to be attached)
CITY OF CUPERTINO
By:
Name: 4/co w A/A n (� _
Title: n...
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State of California
County of Santa Clara
On 4th day of August, 2010 before me, G. Jarnagan a Notary Public, personally appeared Brian J. Kelly, 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 han and official seal.
G. JARNAGAN
•
rrV �� �. Cof�M. # 1854739 (A
) ; *- ' " y NOTARY PUBLIC CALIFORNIA '
Signature: / 111 10/,/1 .1.1.- - J♦ ", SANTA CLARA COUNTY
MY Cor�►�. ExP. Jury. 19, 2013
Name: G. Jar-r►ag_an
(typed or printed) (Seal)
GJ /9]
EXHIBIT A
The land referred to is situated in the County of Santa Clara, City of Cupertino, State of
California, and is described as follows:
PARCEL ONE:
Beginning at an iron pipe found at the Northwesterly corner of that certain tract of land (here
designated as "Tract A ") described in that certain deed from William C. McKinley, et ux, to W. L.
Stapp, et al, dated August 20, 1943, and recorded September 15, 1943, in Book 1162 of Official
Records, Page 45, Santa Clara County Records (said pipe being reset one foot below the
surface of the ground) said point of beginning being also in the Westerly line of that certain
10.06 acre tract conveyed by Amasa Eaton Company, a corp., to John A. Chuk by Deed dated
August 3, 1940 and August 17, 1940 in Vol. 993 of Official Records, Page 591, Santa Clara
County Records, distant thereon North 1 °21' West 180.00 feet from the Southwesterly corner
thereof, and running thence from said point of beginning Easterly along the Northerly line of
said "Tract A ", South 83 °17' East 240.06 feet to an iron pipe found at the Northeasterly corner
of said "Tract A" and in the Easterly line of said 10.06 acre tract (said iron pipe being reset six
inches below the surface of the ground) thence Northerly along said Easterly line of said 10.06
acre tract, North 1 °08' West 180.00 feet to an iron bar set six inches below the surface of the
ground, thence Westerly and parallel with said Northerly line of "Tract A ", North 83 °17' West
240.81 feet to an iron pipe set one foot below the surface of the ground in said Westerly line of
said 10.06 acre tract; and thence Southerly along said Westerly line of said 10.06 acre tract
South 1 °21' East 180.10 feet to the point of beginning, and being a part of said 10.06 acre tract
in the Rancho San Antonio, as patented. Courses True. Surveyed May 4, 1945 by F. A.
Herrmann, Registered Civil Engineer.
PARCEL TWO:
An easement for the purpose of ingress and egress over a strip of land described as follows:
Beginning at an iron pipe set in the Southwesterly ine of that certain 10.06 acre tract of land
described in the Deed from Amasa Eaton Company, a corporation, to John A. Chuk, dated
August 3, 1940, recorded August 17, 1940, in Book 993 O.R. Page 591, Santa Clara County
Records, distant thereon South 41 °27' East 366.50 feet from the Southwest corner of said
10.06 acre tract, and running thence from,said point of beginning North 1 °08' West 426.61 feet
to the Southeasterly corner of the parcel of land firstly above described; thence along the
Southerly line thereof North 83 °17' West 20.19 fee :, thence parallel with and 20 feet Westerly
at right angles from the first course of this description South 1 °08' East 324.10 feet, thence
running along a curve to the right with a radius of 30 feet through an angle of 139 °41' a
distance of 73.14 feet to a point on the Southwesterly line of said 10.06 acre tract running
thence along said Southwesterly line South 41 °27' East 112.63 feet to the point of beginning.
PARCEL THREE:
A right of way for road purposes over a strip of land 20 feet in width, the Westerly line of which
is described as follows:
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Beginning at the Northernmost corner of that certain 0.202 acre tract of land described in the
Deed from W. L. Stapp, et al, to L. W. Northon, e1_ ux, dated January 8, 1943, recorded January
15, 1943, in Book 1124 O.R. at Page 312, Santa Clara County Records; thence from said point
of beginning South 1 °08' East 132.58 feet to the Southwesterly corner of said 0.202 acre tract.
PARCEL FOUR:
An easement for the purpose of ingress and egress over a parcel of land described as follows:
Beginning at an iron pipe "N" on the Southwesterly line of that certain 10.06 acre tract of land
described in the Deed from Amasa Eaton Company, a corporation, to John A. Chuk, dated
August 3, 1940, and recorded August 17, 1940, in Book 993 O.R. at Page 591, Santa Clara
County Records, distant thereon South 41 °27' East 366.50 feet from the Southwesterly corner
of said 10.06 acre tract, thence from said point of beginning running North 1 °08' West 208.04
feet to the Southwest corner of that certain 0.202 acre tract of land described in the Deed from
W. L. Stapp, et al, to L. W. Northon, et ux, dated January 8, 1943, and recorded January 15,
1943, in Book 1124 O.R. at Page 312, Santa Clara County Records; thence along the Southerly
line of said 0.202 acre tract; thence South 85 °00' East 20.12 feet to an iron pipe; thence
running South 1 °08' East 100.56 feet to an iron pipe, thence curving tangentially to the right on
a curve of 70 feet radius through an angle of 44 °25' for an arc distance of 54.27 feet to an iron
pipe, thence South 31 °56' East 35.79 feet to an iron pipe, thence South 10 °12' West 38.89 feet
to an iron pipe on the Southwesterly line of 10.06 acre tract so described in the Deed to John A.
Chuk above referred to; thence along said last narned Southwesterly line North 41 °27' West
16.48 feet to the point of beginning.
APN: 326-17-017
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