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CC Resolution No. 11-158 Maintenance Agreement, 20730 Stevens Creek Boulevard, APN 359-08-020 RESOLUTION NO. 11 -158 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING EXECUTION OF A MAINTENANCE AGREEMENT, BYER PROPERTIES, L.P., A CALIFORNIA LIMITED PARTNERSHIP, 20730 STEVENS CREEK BOULEVARD, APN 359 -08 -020 WHEREAS, there has been presented to the City Council a maintenance agreement between the City of Cupertino and owner, Byer Properties, L.P., a California limited partnership, 20730 Stevens Creek Boulevard, 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 6th day of September, 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: V Kimberly Smith, City lerk . Gilbert Wong, Mayor, City of Cupertino RECORDED AT THE REQUEST OF ) And ) WHEN RECORDED RETURN TO: ) ) ) ) SPACE ABOVE FOR RECORDER'S USE ONLY MAINTENANC E AGREEMENT 20730 Stevens Creek Boulevard APN 359-08 -020 THIS MAINTENANCE AGREEMENT ( "Agreement ") is made and entered into this G TtA day of seer , 20 11 , by Byer Properties, L.P., a California limited partnership, (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 and improvements that comprise Cupertino Crossroads is located at 20730 Stevens Creek 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 between Declarant and the City of certain improvements, including landscaping, that is situated on real property owned by City along 20730 Stevens Creek Boulevard 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 agree 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, i :Tigation, and landscaping located on the portion of the City's property that abuts and fronts the Project ( "the Frontage Area of the Project ") along 20730 Stevens Creek Boulevard to back of curb line, excepting there from the standard public sidewalk abutting the property line of the Project which shall remain the maintenance responsibility of the City. 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 arbitration 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, agreements, arrangements or undertakings, oral or written, which are not fully expressed herein. 9. 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 which can be separated from the invalid, unenforceable provisions shall, nevertheless, continue in full force and effect. 2 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. 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: Byer Properties, L.P., a California limited partnership By :`- _ (notary acknowledgement attached) Alex B. Byer Attorney in Fact for Byer Properties, L.P., a California limited partnership CITY OF CUPERTINO :e: j Vd % - Title: 67/.€(- � 1 • 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. EXCEPTING 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 • • • • • • • • • • • • • I i vl N 00 "W 3 185.00" „„'s" EAMrMA LME A - i N OO OD' 35. w g I 11 l.b'• % �MM OFOP3= 1 2 2.52' 11 Ij I I I 1 11 1 ff = >e 3 7 h � z N _ W 1 Pi ' -1- w 1 I SCALE: 1" = 200" ZCS s c o w we I i — 0 I I I I I I I I I 1 171 L .►� I 3 • / r C%. 1— 1114M:0010 OPW 3W-011-006 o .. • - 1 r,III IIIIIIIf in 1 - 1 1, � 111(Iit .1" '— i , ! PMfII 11 >, —_ �ON1 2279 �� �i \ \ 0, J I W I - , 12 LEGEND __ - '� n -i JJ L-2 11--:':: i _' ��� MAINTENANCE vs : _ � _ AGREEMENT 1 AREA � PMW.A I � _ ask 361-011-010 II ; 1 ' K ! 1111111 i 1 / H q — Ij - .y w111a I 1 ,. =mg ED r ; ' . • .. -.. - '- - d m • r 5 ". ' i 1 J n )1 ALLIED ENGINEERING COMPANY DATE: 09/02/11 A DIVISION OF K-G4 CONSUL11NG ENGINEERS, INC. EXHIBIT 8 CONSUL1ING AND LAND SU PLANNERS MAINTENANCE AGREEMENT AREA DWG BY SY 3170 W W ANS ROAD SAN JOSE, CA 95117 (408 241-1980 FRONTAGE OF 20730 STEVENS CREEK BLVD. CHK: U SHEET 1 OF 2 CUPER I1NO, CALIFORNIA JOB NO.. 1011 MAMMA M E i 1 LEGEND ,�: 1A9��d ----I � AV: 351-00-016 L1 MAINTENANCE AGREEMENT AREA _ Karr ne e I i , --..I - 1 Pawn 0 ,PN 0a -006 — I="Y" — MCA . 11 i PP* 790 - 01-001 1 r )1 J i yes wow ONIE,) I r • AM ae0- 0 N00' Or 46 W SCALE: 1" = 200" 1000 RA 170 -r-3 ti I Mk 700 -01-020 f. li g 1 f ;h T. s9 e ZNZ w d 1 4,29m 94 FT. �: z I 0.10 ACRES q ti g I N 14 00' 02 45 W r i 1000' 1. MK 1 I W ! l —I s1 i ANk - 011-629 ! Z 1 APIA 701 -00-021 •, ' PALL 01E 0.109 -011-1 BM I -2 ALLIED ENGINEERING COMPANY DATE: 09 /02/11 A DIVISION OF K-431.1 CONSULTING ENGINEERS, INC. EXHIBIT B SURVEYORS AND PLANNERS MAINTENANCE AGREEMENT AREA DW BY SY 3170 WWANS ROAD SAN JOSE, CA 95117 (408) 241_1960 FRONTAGE OF 20730 STEVENS CREEK BLVD. MK: U SHEET 2 OF 2 CUPERTINO, CALIFORNIA JOB NO.: 1011 CALIFORNIA ALL- PURPOSE CERTIFICATE OF ACKNOWLEDGMENT , 1 E State of California '1 County of c-w F e SC J On �` 06 oZ U!/ b me, � CZiYi'' , : �G C _ t� / 2� e J �i , E / (H{ insert name and title of the o f ficer) 1 • � personally appeared /CtC � J : 7 � y ' . c'� p f 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/At/they the same in leis /h /t1 i1 ithorized capacity(es and that by his/her t 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. • ..''''''',101N..:, TODD MCCORI�ACK i i WITNESS my hand and official seal. - r' '-V NOTARY PUBUC•CA 1865928 to i ' y N ` � f UFORNM W ' —� ` '� ! MY COM Cowin OCT FRANCISCO 11 ..1111 --- ----- (Notary Seal) ignature ..gl fi 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 Waist be properly completed and attached to that document. The only exception is if a 1"--1 : ,, l °6 A r&C/l..e�/ document is 10 be recorded outside of California. Iii such instances, any alternative f (Titic or description of at` lacd document) a knowledgment verbiage as may be printed on such a document so long as the verbiage does not require the notary to do something that is illegal for a notary in -- 1 7 1q 3S9 ✓ 0 --- OC2Z) California (i.e. certifying the authorized capacity of the signer). 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