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10-110 Stormwater Management Facilites Operation and Maintenance Agreement, 790 South Blaney Avenue, APN 369-11-048 DOCUMENT: 20984682
Pages: 10
Fees
RECORDING REQUESTED BY: I Taxes ¥ No Fees
Copies
City of Cupertino AMT PAID -—
WHEN RECORDED, MAIL TO: REGINA ALCOMENDRAS
SANTA CLARA COUNTY RECORDER RDE ## 005
es t o f
Recorded at the request 12/02/2010
City Clerk's Office City 10 : 14 AM
City of Cupertino
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
790 South Blaney Avenue
APN 369 -1[ 1 -048
Blaney Venture, LLC, a California Limited Liability Company
3 Original
0 For Fast Endorsement
RESOLUTION NO. 10 -203
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
AUTHORIZING EXECUTION OF A STORMWATER MANAGEMENT
FACILITIES OPERATION AND MAINTENANCE AGREEMENT,
BLANEY VENTURE, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY,
790 SOUTH BLANEY AVENUE, APN 369 -11 -048
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, Blaney Venture, LLC, a California Limited Liability Company, 790
South Blaney Avenue, APN 369 -11 -048, 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 1st 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:
City Clerk
M. or, City of Cupe no
RECORDED AT THE REQUEST OF )
and )
WHEN RECORDED RETURN TO: )
)
)
)
)
)
SPACE ABOVE FOR RECORDER'S USE ONLY
STORMWATER MANAGEMENT FACILITIES
OPERATION AND MAINTENANCE AGREEMENT
790 South Blaney Avenue
APN: 369 -11 -048
THIS STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTENANCE
AGREEMENT ( "AGREEMENT ") is made and entered into this 12"day of SEAtrefSte 20 to ,
by Blaney Venture LLC, a California 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 I 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
FINAL -1- 11/25/03
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
FINAL -2- 11/25/03
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, 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 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 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 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. 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 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.
FINAL -3- 11/25/03
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.
FINAL -4- 11/25/03
Executed the day and year first above written.
(COVE iW TOR W ri9 •y V'. Nvru t2i= L L c .
Name: ae R r ` A I
e t. V \ w4-‘1 C
(Notary acknowledgment to e attached)
CITY OF CUPE TINO
By
Name: I AZO
Title:
Appfoved as to form:
City Attorney
FINAL -5- 11/25/03
CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189
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State of California
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County of SAN - 7 - 4 C[ -_0'1 AA P
0 On Nov. o , 2- before me, K( 2ST N 2e ose -5QjARc )►9, NOTARY Pugs.((, a
Date Here Insert Name and Title of the Officer
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Name(s) of Signer(s)
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who proved to me on the basis of satisfactory
evidence to be the personcs) whose names) is /ire 1
f, subscribed to the within instrument and acknowledged
to me that treishealley executed the same in
hisiher /Jir authorized capacityties), and that by y
<< bis /her /Jh r signatureO' on the instrument the �
person,(s), or the entity upon behalf of which the p
persDn,(.s'jacted, executed the instrument. i
KIRSTEN RENEE SOUARCIA
I certify under PENALTY OF PERJURY under the I
Commission # 1906898 laws of the State of California that the foregoing 9 •
( Notary Public - CalNornia P 9 P
•; ara ra h is true and correct.
, ./ . - y!►% Santa Clara County V
r My Comm. Ex Tres Oct 4. 2014 WITNESS my hand and official seal.
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Place Notary Seal Above Signature of Nota ublic 9�
(, 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.
Description of Attached Document ;
Title or Type of Document: 9T(2-AAof r€ /f?"1464_MFnrr Pit Uu�7
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Document Date: SEe TEMP'F2 .2
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© 2010 National Notary Association • NationalNotary.org • 1- 800 -US NOTARY (1- 800 - 876 -3827) Item #5907
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CALIFORNIA ALL- PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
State of California
County of 5Mtit.-
On,I5 ,f'(J / o2/0 before me, aii.44 CliiCh 1'24} 4 fk� 644., ,
` insert name and title of thi
personally appeared 1 l L ) e lY.21( 1 k
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) re subscribed to
the within instrument and acknowledged to me that he lihe /they executed the same is er /their authorized
capacity(ies), and that b his , er /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.
ALISON J. SCHARNOW
WITNESS my hand and official seal.
44 "..i. commission # a7335s
• Notary Public - California
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aiu44-9 6e. r � r Santa Clara County
�ii 'eu (ot seal) z My Comm. Expires Dec 17, 2013
Nary
Signature of Notary Public
• •
ADDITIONAL OPTIONAL INFORMATION
INSTRUCTIONS FOR COMPLETING THIS FORM
Any acknowledgment completed in California must contain verbiage exactly as
DESCRIPTION OF THE ATTACHED DOCUMENT appears above in the notary section or a separate acknowledgment form must be
I! t , properly completed and attached to that document. The only exception is if a
td, h f � ¢ } � `� �� l� document is to be recorded outside of California. In such instances, any alternative
f acknowledgment verbiage as may be printed on such a document so long as the I
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EXHIBIT "A"
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF CUPERTINO, COUNTY OF SANTA CLARA, _
STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
Beginning at the Westerly common corner of that certain 59.89 acre parcel of land described in the Deed from John P.
Crossley, et ux, to E.E. Newton dated January 9, 1912 and Recorded January 9, 1912 In Book 38 of Deeds, Page 267,
Santa Clara County Records and that certain 33.474 acre parcel of land described in the Deed from Edwin G. Hall, at
ux, to Morgan E. Payne, dated May 2, 1893 and Recorded December 21, 1893 In Book 165 of deeds, at page 326,
Santa Clara County Records, said point of beginning being In the center line of Blaney Road; thence along the dhriding
line between said 59.89 acre parcel and said 33.474 acre parcel South 58° 49' 37" East 317.57 feet; thence South 31°
10' 13" West 128.61 feet; thence on an arc of a curve to the left the tangent of which bears North 74° 20' 20" West
with a radius of 209 feet through a central angle of 15° 53' 35" an arc distance of 57.97 feet thence South 89° 46' 05'
West 146.81 feet to a pont on said center line of Blaney Road; thence along said center line North 0° 13' 55" West
267.25 feet to the point of beginning.
APN: 369- 11-048
