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CC Resolution No. 11-145 Stormwater Management Facilities Operation and Maintenance Agreement, 20730 Stevens Creek Boulevard, APN 359-08-020 RESOLUTION NO. 11 -145 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING EXECUTION OF A STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTENANCE AGREEMENT, BYER PROPERTIES, L.P., 20730 STEVENS CREEK BOULEVARD, APN 359 -08 -020 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, Byer Properties, L.P., 20730 Stevens Creek Boulevard, APN 359 -08 -020, 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 16th day of August, 2011, by the following vote: Vote Members of the City Council AYES: Wong, Santoro, Chang, Mahoney, Wang NOES: None ABSENT: None ABSTAIN: None ATTEST: APPROVED: ___ .I / Kimberly Smith, / lerk Gilbert Wong, Mayor, CitCupertino RECORDED AT THE REQUEST OF ) and ) WHEN RECORDED RETURN TO: ) ) ) ) ) ) SPACE ABOVE FOR RECORDER'S USE ONLY STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTENANCE AGREEMENT County Assessor's Parcel # 359 -08 -020 THIS STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTENANCE AGREEMENT ( "AGREEMENT ") is made and entered into this 1 4tday of ; t , u , 20 1( , by Byer Properties, L.P., a California limited partnership, (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 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 Allied FINAL -1- 11/25/03 Engineering Company and dated _, which plans and any amendments thereto, are on file with the Public Works Depattment 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 a;,quiring 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 Management 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 Managem ent 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 Stonnwater 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. (COVENANTOR) By: ° , .a t- Name: /i L- C -7` ,! C �- Title: G -a rte-- "� • (Notary acknowledgment to be attached) CITY OF CUPERTINO By: Name: (� /Ss� `✓m^'� Title: /49v / FINAL -5- 11/25/03 LEGAL DESCRIPTION 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: • ALL OF PARCEL A as shown upon that certain Map entitled, "Record of Survey for Mr. Warner H. Wilson being a portion of the North 1/2 of the Southwest 1/4 of Section 13, T7S, R2W, M.D.B. & M., Cupertino, California ", Recorded May 24, 1968 in Book 238 of Maps, at Page 3. IDCCEPTING THEREFROM all those certain water rights conveyed by Pauline W. Woodruff, et al to California • Water Service company, a Corporation, by Deed Recorded May 10, 1968 in Book 8119 Official Records, Page 208. ALSO EXCEPTING THEREFROM the underground water or rights thereto with no rights of surface entry, as granted to the City of Cupertino Recorded in February 26, 1970 in Book 8839 of Official Records, Page 594. APN: 359 -08 -020 • • • • • • • CALIFORNIA ALL - PURPOSE 1 CERTIFICATE OF ACKNOWLEDGMENT ! State of California 1 Count of , - r — �ZI c c On tz /,,, " 7 before me, � / l r' �`� ��� T , / ' (Here insert name and title of the officer) ! /f /� (-77 is personally appeared / / C-x / /7 TD Y '' >,7-- 1 ` t / t i ; t w ho proved m. roved to me on the basis of satisfactory whose name Is /a;ubscribed to 1 y evidence to be the p erson ( �' the within instrument and acknowledged to me that he:/ e /tr y executed the same in his /hef/theirauthorized capacity(i.es) and that by his /h signature(8) tae instrument the persons% or the entity upon behalf of which the person(s)cted, 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. X ,� TODD MCCORMACK it WITNESS my hand and official seal. - 4M i COMM.# # 1885928 N ti� � t' - NOTARY PUBUC•CALIFORNU► N �� j 1 ..... .. COYMfl IAM fMN01100 , �� %_- _..011.1...' ,, _',I MY CM. XP. OCT. YI, ��a �� (Notary Seal) Sigma o otary Public ADDITIONAL OPTIONAL INFORMATION I INSTRUCTIONS FOR COMPLETING THIS FORM A ny acknowledgement completed in California must contain verbiage exactly as i DESCRIPTION OF THE ATTACHED DOCUMENT appears above in the notary section or a separate acknowledgment form must be 1 roper1y completed and attached to that document. The only exception is if a j1 D ."A-- w �. ` `- , ,'t,,,. l , . 2r �unnent is t o be recorded outside of California, In such instances, any alternative J acknowledgment verbiage as may be printed on such a document so long as the 13 (Title or description of attached document) verbiage does not require the notary to do something that is illegal for a notary in California (i.e. certling the authorized capacity of the signer). Please check the (Title or description of attached document continued) document carefully for proper notarial wording and attach this form if required. State and County information must be the State and County where the document Number of Pages - Document Date ? / /ra j/ • signer(s) personally appeared before the notary public for acknowledgment. • Date of notarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. t (Additional information); • The notary public must print his or hcr,namc as it appears within his or her ' I commission followed by a comma and then your title (notary public). Print the name(s) of document signer(s) who personally appear at the time of notarization. CAPACITY CLAIMED BY THE SIGNER • Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. • Individual (s) he /she /they, - is /ere) or circling the correct forms. Failure to correctly indicate this 1 information may lead to rejection of document recording. ❑ Corporate Officer • The notary seal impression must be clear and photographically reproducible. Impression must „nat cover text or lines. If seal impression smudges, re-seal if a (Title) sufficient area permits, otherwise complete a different acknowledgment form. ❑ Partner(s) • Signature of the notary public must match the signature on file with the office of the county clerk. ❑ Attorney -in -Fact 6. Additional information is not required but could help to ensure this ❑ Trustee(s) acknowledgment is not misused or attached to a different document. i El Other 4. Indicate tide or type of attached document, number of pages and date. Indicate the capacity claimed by the signer. If the claimed capacity is a i corporate officer, indicate the title (i.e. CEO, CFO, Secretary), ii • Securely attach this document to the signed document 2008 Version CAPA v12.10.07 800 - 873 -9865 www.NotaryClasses.com CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 fi State of California fi County of SA NTA c LARA g fi fi I � fi On 4t1GUST 23 t 2_01t before me, AtPS - r.1 R EE sr�l��CI , N OTARY Pu6t - (L , Date Here Insert Name and Title of the Officer personally appeared G -t�Bt= RT L.' o t-16- g I Name(s) of Signer(s) l ',, , i who proved to me on the basis of satisfactory eviclence to be the person, ) whose name is are subscribed to the within instrument and acknowledged q to me that (Yshe /they executed the same in her /their authorized capacityjiesi, and that by l I her /their signature,W on the instrument the I person(s), or the entity upon behalf of which the person( acted, executed the instrument. g, I certify under PENALTY OF PERJURY under the I �"W),/,',,, , laws of the State of California that the foregoing Commission # 1906898 a i t Notary Public - California z paragraph is true and correct. 1 V.4' f Santa Clara County g, I_ _ _ My Comm. Expires Oct 4, 2014 WITNESS my hand and official seal. rr ti Signature: k-t-t-a---t /(.e -vr.44) 9 Place Notary Seal Above Signature of Notary blic 0 "` OPTIONAL I� ii Though the information below is not required by law, it tray prove valuable to persons relying on the document and could prevent fraudulent removal and realachment of this form to another document. ( Description of Attached Document co 0,-111 AN 3Sg- os -ozo Title or Type of Document: SToP.m WATTFP Mars A6- FAc.I a CS o t' —AT(o N Ar MAt>✓T. Document Date: . -V LY \ 2 1 20 (( Number of Pages: i p Signer(s) Other Than Named Above: A Ls Pa. t3Y E R. Capacity(ies) Claimed by Signer(s) g Signer's Name: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Corporate Officer — Title(s): i ❑ Individual RIGHT THUMBPRINT ❑ Individual RIGHT THUMBPRINT � 22 OF SIGNER OF SIGNER hJ ❑ Partner — ❑ Limited ❑ General Top of thumb here ❑ Partner — ❑Limited ❑General V p To of thumb here f ❑ Attorney in Fact ❑ Attorney in Fact V ❑ Trustee ❑ Trustee V ❑ Guardian or Conservator ❑ Guardian or Conservator O ❑ Other: El Other: V 9 Signer Is Representing: Signer Is Representing: g .,u^ c^t,,,,_. .x,,,, ,,,. c.. .. �.,,, ;cxx^ ,,,,,,,,,, ,, ,u�-<x=<;, _ , vK=cn,,,,,x c^ © 2010 National Notary Association • NationalNotary.org • 1- 800 -US NOTARY (1-800-876 6827) Item 85907