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CC Resolution No. 10-217 Maintenance Agreement, 10077 Scenic Boulevard, APN 357-09-002 RESOLUTION NO. 10 -217 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING EXECUTION OF A MAINTENANCE AGREEMENT, WEN CHUNG STEWART WU AND CHENG YUAN TOURISA WU, 10077 SCENIC BOULEVARD, APN 357 -09 -002 WHEREAS, there has been presented to the City Council a proposed maintenance agreement between the City of Cupertino and Wen Chung Stewart Wu and Cheng Yuan Tourisa Wu, 10077 Scenic Boulevard, APN 357 -09 -002 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 29th day of November, 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: / 4\._c (- A. City Clerk t r ›.(a / /or, City of Cup: ino RECORDED AT THE REQUEST OF And WHEN RECORDED RETURN TO: SPACE ABOVE FOR RECORDER'S USE ONLY MAINTENANCE AGREEMENT 10077 Scenic Boulevard APN 357 -09 -002 T S MAINTENANCE AGREEMENT ( "Agreement ") is made and entered into this /C r ' of /k/12 , 20,) , Wen Chung Stewart Wu and Cheng Yuan Tourisa Wu, husband and wife as joint tenants (hereinafter referred to as "Declarant "), and the City of Cupertino ( "City "). RECITALS: This Agreement is made and entered into with reference to the following facts: A. The real property is located at 10077 Scenic Boulevard, within the City of Cupertino ( "City "), County of Santa Clara, State of California. B. As set forth herein, 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 thereof. C. The purpose of this Agreement is to allocate the costs of maintenance, repair and replacement bdtween Declarant and the City of certain improvements, including landscaping, that is situated on real property owned by City along Scenic Blvd. in front of the Project, and to establish certain criteria and procedures for the accomplishment of said maintenance, repair and replacement. NOW, THEREFORE the parties hereto wee 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" 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 1 Agreement against any other Owner, tenant or occupant of the said property, or any portion thereof. 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, and keep in good condition all improvements, paver blocks, flagstone, and landscaping located on the portion of the City's property that abuts and fronts the Project ( "the Frontage Area of the Project ") along 10077 Scenic Boulevard to edge of pavement. Exhibit `B" shows the portion of the City's property for which Declarant is responsible for maintenance hereunder. 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 Area of the Project described in paragraph number two and delineated on Exhibit `B" in a good, useable condition under all weather conditions. Said Frontage Area of the Project shall be maintained to the standards, specifications and condition to which, 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. 4. Decisions Regarding Performance of this Agreement: All decisions regarding the need for maintenance, the implementation thereof, and any particular other matters relating to the Frontage Area of the Project shall be determined by the City. 5. Indemnity: Declarant shall defend, indemnify, and hold 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 attorney's fees, arbitration fees or costs and court costs, arising out of or related to the use and landscape maintenance of the Frontage Area of the Project described in paragraph number two and delineated on Exhibit "B ", except to the extent that such claims, liabilities, actions, causes of action, and damages arise out of or relate to City's employees, agents, representatives, contractors, vendors or consultants. 6. 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 hereof, the prevailing party in such action or arbixation shall be entitled to reasonable attorneys' or arbitrators' fees in addition to all other recoverable costs, expenses and damages. 7. 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. 8. 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, agrements, arrangements or undertakings, oral or written, which are not fully expressed herein. 9. Severability: In the event any part or prevision 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. 10. 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. 2. 11. Recordation: It is anticipated that this Agreement shall be recorded and shall be executed and acknowledged in proper recordable form. 12. 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 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: Owners ■ By: ', t (% (notary acknowledgement attached) Wen Chung Stewart u By/ %' ''�� , /- � , (notary acknowledgement attached) C1eng Yuan Tdurisa Wu ; ; CITY OF CUPERTINO r G2 By: ' Name: 'le S A f Title: t-. A -t. eL / ' App r ve4 .s to Form: \_c City Attorney 1 . Page 1 Escrow No. 867195 -SW LEGAL DESCRIPTION EXHIBIT All that certain Real Property in the City of Cupertino, County of Santa Clara, State of California described as follows: Lot 99A and a portion of Lots 95, 99 and 1CO Map of Inspiration Point, Monta Vista, as per Map filed in Book P of Maps, Page 18, Santa Clara County Records, and more particularly described as follows: Beginning at a 3/4 inch iron pipe in the westerly line of Scenic Boulevard 40.00 feet wide at the intersection thereof with the easterly prolongation of the northerly line of lot 99, as said Boulevard and lot are s?-.own upon the map referred to above; thence from said point of beginning along said prolongation and the northerly line of said lot 99 north 89 deg 53' west 140.02 feet to a 3/4 inch iron pipe; thence at right angles south 0 deg 07' west 100.12 feet to a 3/4 inch iron pipe; thence at right angles south 89 deg 53' east 130.48 feet to a 3/4 inch iron pipe in said westerly line of Scenic Boulevard; thence along said. westerly line northeasterly along the arc of a curve to the right from a tangent which bears north 0 deg 07' east with a radius of 530.00 feet through a central angle of 10 deg 53' 20" for an arc length of 100.72 feet to the point of beginning and being a portion of the land shown upon that certain map entitled, "Record of survey of sections 99A, 100, 101A, and portions of Sections 95, 99, 101, 105 map of inspiration point, Monta Vista, which map was filed for record in Book 56, Page 10 of Maps. mann. A DEEDLEGL -08/09 /94bk il l fi "a°. ,t f , 3 (e) U b Residence WwU U � O N . c_ II Ia,II � _ I /-1 I II 4 Paver Driveway I Lawn e a a S 'MI" P ropert y L i ne �i � JJI dm; ■i ill II AMIE 1100141P ( ir I d —��/— _� Dirt Den. 1.011.1.. Propose DRIVE wd. Extend Paver Driveway 6CAll (Paver match existing driveway) Proposed -- ® North Flagstone (Flagstone match existing step entry path) Proposed L-1 Decomposed Granite 0 5 10 20 feet (grey color) ACKNOWLEDGMENT State of California County of c c,,,, e,4,e,4 } ss. On /5 Iflpv (20/ before me, /Ci, 27 T ArcrL , • Notary Public, personally appeared A}f ./ CbroA. / 4, d'7ful.42r IOU f Cif /W(0 X I1 AA ToU.Q' A i. . U . , who proved fb me on the basis of satisfactory evidence to be the person(s) whose name(s) Ware subscribed to the within instrument and acknowledged to me that /se /they executed the same in pls /I)er /their authorized capacity(ies), and that by s/ /their signatures(s) on the instrurent 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. KIRTI I. FATEL ., _�� ��� COMM, #1833519 0 � ; f NOT PUBLIC , CALIFORNIA ,� SANTA, C6 k R A COUNTY jog. M Comm txRiret >a6n: 7, X91 I,/ " Signature (seal) OPTIONAL INFORMATION Date of Document /1,/f ` /" - / et Thumbprint of Signer Type or Title of Document ' 4/.i/7'. z./4A)CC / air Number of Pages in Document _',etc . Document in a Foreign Language Type of Satisfactory Evidence: Personally Known with Paper Identification /Paper Identification Credible Witness(es) 0 Check here if Capacity of Signer: no thumbprint Trustee or fingerprint Power of Attorney is available. CEO /CFO /COO President / Vice- President / Secretary / Treasurer Other: Other Information: 3 ?o;). .!-,1!:, lit:. )is ' c?iC - .. ,x - t . _:.I:ai ..,∎p.: , ;)r', - CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 1 State of California County of S TA u eA p__A , y . g On bec- -er G I2- 2 -I , (°befor me, KfRs - reNi FL'FJJEE SQL NUTfNAy • U AL ( ti Date Here Insert Name and Title of tf Off ' A personally appeared K Qt s u A f� ,' Name(s) of Signer(s) who proved to me on the basis of satisfactory e ii, vidence to be the person(4 whose name(s'f &are ; sutscribed to the within instrument and acknowledged t to me that hethey executed the same in ti his their authorized capacity,(ies` T and that by ) • his(e /their signature,(ef on the instrument the h • personfs); or the entity upon behalf of which the person(sj' acted, executed the instrument. t i KIRSEN under PENALTY OF PERJURY under the rTRENEES G ; `ti. Commission # 1906898 <" ,I■ Notary Public - California paragraph is true and correct. ?) • � ��±, Santa Clara County • My Comm. Expires Oct 4.2014 WITNESS my hand and o seal. • l ?) ti Signature: , j ke.w I Place Notary Seal Above S ignature of tary Public )� OPTIONAL t Though the information below is not required by law, it may prove valuable to persons relying on the document 9i and could prevent fraudulent removal and reattachment of this form to another document. t Description of Attached Document t Title or Type of Document: N i JA-tJc-E A.G��MEns • Document Date: N ov E MBe.R ■9 y 2 0 ■ ∎ o Number of Pages: ( Signer(s) Other Than Named Above: t Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: >> ❑ Corporate Officer — Title(s): ❑ Corporate Officer — Title(s): >> ❑ Individual RIGHT THUMBPRINT ❑ Individual RIGHT THUMBPRINT 12 OF SIGNER OF SIGNER ( ❑ Partner — ❑ Limited ❑ General Top of thumb here ❑ Partner — ❑ Limited ❑ General Top of thumb here >> ❑ Attorney in Fact ❑ Attorney in Fact ( ❑ Trustee 7 Trustee >> ❑ Guardian or Conservator ❑ Guardian or Conservator ( ❑ Other: El, Other: >> ( i Signer Is Representing: Signer Is Representing: y� © 2010 National Notary Association • NationalNotary.org • 1- 800 -US NOTARY (1- 800 -875 -6827) Item 4-5907