The URL can be used to link to this page

14. Nathan Hall Tank House City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 (408) 777-3308 Fax: (408) 777-3333 CITY OF CUPEI\TINO Community Development Department SUMMARY AGENDA No.N AGENDA DATE: September 19, 2006 Application Summary: Authorize the City Manager to sign an agreement to dedicate land and restore the Nathan Hall Tank house. Recommendation: Staff recommends the City Council direct: ~ The City Manager to sign the agreement, and ~ Direct staff to complete the survey map exhibits for the agreement and develop a detailed plan to ensure its renovation. BACKGROUND: In 1980, as a condition of approval for the eight unit Byrne A venue development, the developer Terry Brown, was required to relocate a tank house/viewing stand from the Oakdell Ranch area to its current location next to the Blue Pheasant Restaurant. The selected area was open space required as part of the development. A covenant was recorded requiring the Byrne A venue homeowners to maintain the tank house. In 2000, at the Homeowners Association request, staff researched the covenant and verified that it was properly recorded. The lack of comprehensive maintenance of the tank house has been the subject of several conversations between the Homeowners Association and the City of Cupertino. Consistent with the recorded covenants, staff asked the Byrne A venue Homeowners Association to commence repair and maintenance work on the tank house. However, while some work was completed, comprehensive repairs have not been conducted and the appearance and condition of the Tank House structure continued to decline. HISTORICAL SIGNIFICANCE: The Nathan Hall tank house was built in the mid to late 1800' s. Phyllis Filiberti Butler in her book "Old Santa Clara Valley; A Guide to Historic Buildings from Palo Alto to Gilroy" indicates the tank house was built in the 1880s and Mr. Louis Stocklmeir, in a letter dated February 5, 1980 addressed to a Mrs. Robertson, writes that the structure was "built in the seventh decade of the 19th century." {L(--( Report regarding tank house near Blackberry Farm September 19, 2006 Page 2 This tank house structure survived the Great Earthquake of 1906, when similarly constructed tank houses in the near vicinity crumbled. Tank houses are remnants of a. bygone historic era of homesteading remain in the Santa Clara Valley. According to Mr. Stocklmeir's letter, water was pumped up to the tank with the help of a windmill. The tank house was used to mainly store water for irrigation purposes. It also served as the sleeping quarters of one of Mr. Hall's employees. The shed structures on the two sides of the main tank house were added at a later date. Staff understands that this building was later used as a viewing stand to observe the horses that were once kept on the Oak Dell Ranch site. DISCUSSION: In September 2003, the City Council directed staff to coordinate with the Homeowners Association to facilitate their renovation of the structure. These discussions were not successful. In November 2005, staff met with the members of the Byrne Avenue Homeowners Association again and came to a tentative agreement with them with regard to the tank house, the bike/ pedestrian pathway to the north of the property and the portion of the property on which the Blue Pheasant has encroached upon. Enclosed is a letter of intent from the Byrne Avenue Homeowners Association to . Dedicate land under and around the Nathan Hall tank house near Blackberry Farm Golf Course, and . Readjust lot lines to accommodate o The structures of the Blue Pheasant that encroach onto the Byrne A venue Homeowners' Association property and, o An existing bike/ pedestrian pathway to the north of the property into the city's right of way. The agreement has a number of associated survey maps that need to be prepared prior to its execution. The city shall be responsible for all fees and costs associated with the completion and recordation of the agreement. Along the property lines shared between the Byrne Avenue Homeowners Association and the tank house, the tank house shall be fenced off with fencing material such as a picket fence, wrought iron fence or some other attractive material. The city reserves the right to obtain a Phase I report. This report shall identify any existing environmental hazards with regard to the tank house. If the tank house is ever demolished or destroyed, the city shall return the property to the Byrne A venue Homeowners Association. { l{ -- 1- Report regarding tank house near Blackberry Farm September 19, 2006 Page 3 TANK HOUSE RESTORATION PLAN Staff will coordinate a community effort to restore the tank house to its original condition as depicted in Exhibit F of the proposed agreement. There are several items that need to be replaced or repaired in order to restore the structure (See Exhibit A). This is not an exhaustive list since the building needs closer inspection to determine if more work is necessary. A final scope of work shall be prepared once a site inspection can be conducted and architectural plans for the renovation are prepared. Staff already has a pledge from a contractor for roof replacement. The city will help in coordinating an effort to facilitate various contractors to donate materials, money and labor for the renovation. All forms of donation can .be acknowledged with a plaque bearing the name of the person or the company similar to the recognitions at the Cupertino Community Center building. The Cupertino Historical Society and the Rotary Club are interested in participating in the restoration of the tank house. Staff is in the process of identifying other groups that might have an interest in restoration of the structure. Enclosures: Exhibit A: Tentative Scope of Work Exhibit B: Letter of Intent from Byrne Avenue Homeowners Association Exhibit C: Proposed Tank house Agreement Prepared by: Piu Ghosh, Assistant Planner Approved by: Steve Piasecki Director of Community Development IwL David W. Knapp City Manager G;fPlanning/PDreport/cc/2006(fank House Agreement Report,doc {L(-] TENTATIVE SCOPE OF WORK For the existing tank house structure: 1. Structural roof repair 2. Roof covering 3. Probable sub floor replacement at various levels 4. Possible structural framing repairs 5. Siding repair/replacement 6. Possible sheetrock or plaster repair 7. Electrical connectivity 8. Water connectivity 9. Window / door replacement 10. Interior stair and railing repair 11. Replace/repair exterior guardrail around the tank house 12. Priming and finish coat painting interior and exterior For the new wing structures: 1. Preparation of plans 2. Possible grading 3. Construction of a. Foundation b. Raised floor or slab c. Framing for structures 4. Shear wall 5. New siding to match the existing structure 6. New / refurbished window/doors 7. New roofing and flashing 8. New sheetrock 9. Possible insulation 10. Electrical wiring and outlets 11. Possible heater 12. Plumbing 13. Painting interior and exterior 14. Possible steps outside if it is going to be a raised floor 15. Possible furnishings to represent past use 16. Possible signage outside and inside EXHIBIT A I~-Lf Exhibit B LETTER OF INTENT FROM BYRNE A VE1\TUE HOIvIEOWtffiRS ASSOCIATION TO THE CITY OF CUPERTINO AS DETAILED IN THE RECITALS OF THE ATTACHED "TANK HOUSE AGREElVIENT" DATED Iff JUL Y, 2006, WHICH, BY REFERENCE THERETO IS INCORPORATED HEREIN AND MADE A PART HEREOF THIS LETTER, THE BYRNE A VENUE HOMEOWNERS ASSOCIATION HEREBY DONATES TO THE CITY OF CUPERTINO THE FOLLOWING REAL PROPERTY A-ND IMPROVE:MENTS AS DESCRIBED IN SAID RECITALS: 1. THAT CERTAIN STRUCTURE KNOWN AS THE TANK HOUSE, AND THE LAND THEREUl\.TQER, AS FURTHER DESCRIBED IN PARAGRAPH 2a IN SAID AGREEMENT. 2. A STRIP OF LAND ALONG THE WESTERN BOUNDARY OF THE PROPERTY, ADJOINING PROPERTY KNOWN AS THE BLUE PHEASANT SITE AS FURTHER DESCRIBED IN PARAGRAPH 2b IN SAID AGREE1v1ENT. 3. A STRIP OF LAND ENCOlYIP ASSING THE EXISTING WALKWAY / BIKE PATH RUNNING PARALLEL TO STEVENS CREEK BOULEVARD ALONG THE NORTHERN BOUNDARY OF SAID PROPERTY FROM THE BLUE PHEASANT SITE TO BYRNE A VENUE,AND FURTHER DESCRIBED IN P ARAGRAPH2c IN SAID AG NT. Subscribed an swm pefore me on this 18th day of July, 2006 by . .- ~/ ,personally knol;vn to me or proJed to me On the' asis of satisfactory evidence to be the person ,v. -rvt> appeared Before me,' J J'!d/il i , e .... . Ii. , '" f .' ,!" "" "" /'- MICHAE(J.~MARtiNf SIgnamre /, '; .i .. II ' () , COMM.#1615921 C'J (!) - . NOTARY PUBUC - CALIFORNiA ^ :2 SANTA CLARA COUNTY \1 COMM. EXPIRES OCT. 23, 200Q .. / -2I-z' '- ,. ,~// .1/ ~. l/ /k-~' ~(/{"'^'-) /" P c~ VI e \ c1-',! L / L I 1/ fl{-), lc/i9~(J ;- cu/be-A RICHARD E. wmCKER it:<.., :~"'-~ 'SHARON K. N WEBSTER B. MEIER, JR. (RUSTY) SbIW of California CaurttY. ~ A0lA L cA121'-i . . SubscrltM!d and sworn to. (or,...m.co Before me Of' this 2-i"r day (Jf:dU ~'1, ~ ' -br- _ RiLHAfU..:J E:.. wl1lc..lq::;~ANi)' $i1~t'\j,k_"VC~II1(2.uP personally 'kAo~A-tOmeor proved to me. ... basis of satisfactory evidence to be ~ , , . '.' person(j) who .ppMr~,Wore mIL ' , Slgneture, .", atM: ."'. (SuI) p, f~~ I~ 1t~ jvj f (L(-~ RICHARD E. WIllCKER SHARON K. NORTHRUP '- eN ~ B ~ rrV1v1fi/7. J~~\ (~~ ;) WEBSTER B. 1\1EIER, JR. (RUSTY) , ~If ll..{-7 JURAT r-h- ~=^'=^=^=^'=^=^=^=^~~,i;cx><::*Z(>-~.co.=^=^=^=^=^=^=^;s/>;s/>;s/>=P.=^=^=^=^,=^=^ =^=^'=^=^=^="V"""^ - ^:D<:~~;i:J(';-^" ~., - ,="",,,,,,,,,,,,,,,,,,,,,,-,""',,',,-,""""" _'" -. " . " . - , :. -""'''-''''''-'''''-'''''-'''''''''''''''''==''''"' ^",."""."-,, "-,,,,,,,, "",,,,,,,,,,-,,:,,",-,,-,,,,,,,,,,,,-,,.,,-,,x:x' . , ' -.' --_. "~ ~' State of ~\ ~~ ~ } ss ;~ ~',:. County of &~(n"lA CA OY?).... . ~I (, 'I [, Subscribed and sworn to (or affirmed) before me ,I th is J If'tEO' day of cJ U I V' , ;).CC4, by :: Date ;tc;nth Year ' 1 (1) vVetJsl-t'r (2), {trlQ i er J-y'" 'I 'I '.I I , ~ l' EliZABETH PAPADAKIS -(ii" , Commission 111631214 . ," i . -. Notary Public . California ! i . Santa ClOIa C~ i . "MyCOTTYT\. ExpIJe&Dec 18.2009 .......-________________4_. Name of Signer(s) l' (2) --- ~, Name of Signer(s) . {LG-r~Y fU \1lA L O(~ <I ~ 'I Signature of Notary Public 'I 'I ~ : l' t ~, OPTIONAL 1 Though the information in this section 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 I ~ i r I ' '+ --(4Q.C()"} f?y rile f\-'1J&. . Title or Type of Document_.j-4::'+ . -t'f D,t- In.,t:rL Document Date~ ill y \ 5r .2CG~ Number of Pages:-t(,.\J 0 Signer(s) Other Than Named Above: ley( i J-b..-+c:,( I t<,chCtrd t _ W\fl ictey I ,S\flfO'?.lf-) ~. No:+h rup - Top of thumb here Top of thumb here I' J 'I ~.~ "I .'1 , . "~~~~~'g,;.'<Yv~~~~~'g,;.~~~~~~~~~"Q(;.~~~'@j'@(;c c' -' -' . <}:J @ 1999 National Notary Association' 9350 De Soto Ave., P.O. Box 2402' Chatsworth, CA 91313.2402 Prod. No. 5914 Reorder: Call Toll-Free 1.800-876-6827 ll{- r Exhibit C TANK HOUSE AGREEMENT This agreement is entered into in the Santa Clara County, California by and between Byrne Avenue Homeowners Association, hereinafter referred to as II Homeowners" and the City of Cupertino, hereinafter referred to as "City". RECIT ALS A. Homeowners own the real property described as Lot 6, Tract Number 6574, filed for record in the Office of the County Record of the County of Santa Clara, on the 13th day of June, 1979, in Book 443 of Maps at Pages 34 and 35. (Exhibit A - Attach legal description of property owned) B. The above-described real property with an historic Tank House thereon is subject to both a Declaration of Covenants and Restrictions recorded in the Santa Clara County Recorder's Office on June 28, 1979 and Agreements and Covenants Running with the land recorded on 1980. C. Said Declaration of Covenants and Restrictions states: "The Byrne Avenue Homeowners Association shall maintain the Tank House structure in reasonably good condition and repair shall be borne by the Byrne Avenue Homeowners Association." D. Complete maintenance of the Tank House has not been undertaken by the Byrne Avenue Homeowners due to incompletion of contract between Bryne Avenue Homeowners and Westwind Development, Inc. (See Exhibit B - Letter) E. Homeowners desire to donate to the City in fee certain portions of said real property free of the aforementioned Declaration of Covenants and Restrictions - 1 - II.{ - (1 / // / / '-' including amendments thereto, if any, and free of the aforementioned Agreements and Covenants RUlming with the Land including amendments, thereto, if any. F. The intent of the above transfer is the assumption by the City of all responsibility for the renovation, restoration, maintenance, landscaping, operation and use of the Tank House and to allow the Homeowners a charitable tax deduction. G. The City and the Homeowners also desire to resolve the boundary misalignment that exists along the west boundary line with the Blue Pheasant Restaurant site and to locate the public pathway along the north property line within the public right-of-way. AGREEMENT In consideration of the parties mutual promIses, covenants, and conditions contained below, it is hereby agreed as follows: 1. The recitals herein above set forth are incorporated into this Agreement by this reference as though fully set forth at length verbatim. 2. Subject to the terms of this Agreement and conditioned upon the HomeoW1'1ers1 reasonable approvals as set forth below, the Homeowners shall transfer to the City in fee all of the following: a. The land under and around the Tank House structure for restoration and use as a historical site as described on Exhibit C (Map by surveyor) ~ith t~2\Ch bounddfv, not tel exce\:'tl fifteen feet (13J...b-~lln e,,1(h Cllrner ~ b. A strip of land along the west property line boundary with the Blue Pheasant Restaurant site as described on Exhibit D (Survey Map provided by Public Works) _lil)dicdt~'dJ2l..l:~n'''\'..llu'in\',.J;nJ_~tcd<\'''._J'n'',,,-'nth' in f-11(KL' '-2.0 c;a i ej buurH.!c, rlJ c. A strip of land encompassing the existing walkway fbike path along Stevens Creek Boulevard from the Blue Pheasant Restaurant site to Byrne (l(-(O * wi..}), 7;"(2 e':1-0erUJW 1:Yf? -2- LAnd be-l-wefll1 -Ihe -r,q-nR#o7;~ and +h-e N<a?iwesr 60/J11G'~ 0(' !...-UI ~I rYAlOI vv,."".6e1tl a.S71./~ W J ~/'O-".l/ .t. /'j Inn j"diO.../ ,Tl -I-l1e dOr'll4-rlOn t?; t4-opfiilY"+~. Avenue as described on Exhibit E (Map by Surveyor) J,h,i L(' nU_t'"lt \\'[t1l h"t\\., ,,-'11 'lllTPn1- f. ""-'.- .,,.,,i cjd'J,~]1-. . '-_ ~ - . - c ~ ~ L.'''~. - _"'c"""'". -,~~ IZV\...-.. 3. The parties mutually agree that the aforementioned transfers of real property are to be properly documented as reasonably necessary by land surveys, legal descriptions, agreements, lot line adjustments and/or dedications and/ or deeds, including, without limitation, documentation reasonably necessary to accomplish the land transfers free of the aforementioned Declaration of Covenants and Restrictions and Agreements and Covenants Running with the Land to allow Homeowners a charitable tax deduction. All costs associated with the land surveys, preparation of legal descriptions, agreements, lot line adjustments and/ or dedications and/ or deeds, including, without limitation, the fees charged by a surveyor, attorney fees, notary fees, and recording costs shall be borne by the City. 4. The aforementioned transfers shall benefit the Homeowners with the following equitable servitudes or restrictive covenants running with the land. a. The City shall assume all responsibility, including, without limitation, all financial responsibility for the renovation, restoration, operation, landscaping, maintenance and use of the Tank House building. b. The City shall use the aforementioned real property (Exhibit C) as a historical monument for the Tank House. c. None of the h'ansferred property (Exhibit C) shall ever be used for parking or for anything other than the operation of the Tank House as a historical site. - 3 - {({-I( d. Should the Tank House be removed from the property, demolished or destroyed, the City shall reconvey that portion of the land back to the Byrne Avenue Homeowners Association. , 5. The City intends to coordinate a community volunteer effort involving service organizations, the historical society, private businesses, and contractors and individuals willing to donate time and materials to renovate and restore the structure to its original condition as shown in the attached sketch (Exhibit F). 6. The City shall erect and maintain, at its sole cost and expense, a decorative fence made out of wrought iron or white pickets or similar attractive materials, along the boundary line separating the Tank House from the remaining common area lot. 7. The City agrees to hold harmless and indemnify Homeowners and each individual member of the Byrne A venue Homeowners Association, including, without limitation, any corporation or other entities controlling, controlled by or under common control with the Homeowners from and against any and all claims arising from injury to persons, loss of life or damages to property occurring in or about all real property being transferred to the City by virtue of this Agreement and from and against any and all costs, expenses, liabilities, including, without limitation, reasonable attorneys fees, incurred by the Homeowners, and/ or its individual members, or any of them, or in connection with any such claim or any proceeding based thereon, to the extent such injury, loss of life, or damage arises out the negligent or willful act or failure to act of the City, or any of its officers, employees, agents, contractors, licensees, visitors, guests or invitees. -4- f4-(J.... 8. The City and the Homeowners for themselves and their successors, servants, employees, agents, representatives, attorneys and assigns do hereby release, remise, exonerate, and forever discharge the other, and each of their respective servants, employees, agents, representatives, attorneys and assignees, from any and all manner of actions, suites, debts, accounts, contracts, agreements, conh"oversies, judgments, damages, claims, liabilities and demands of any nature whatsoever which they ever had against the other, now have, or hereinafter can, shall or may have for or by reason of any act, transaction, practice, conduct, matter, cause or thing of any kind or nature whatsoever relating to any demands, claims and of Covenants and Restrictions, Agreements and Covenants Running with the Land and boundary counter-claims with respect to the real estate being transferred, the above identified Declat"ations misalignment and any other related or unrelated matters which were or could have been asserted in any way between the parties hereto. 9. With respect to this agreement and release, each of the parties acknowledges an awareness of the provisions of 91542 of the California Civil Code, which provides as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. Each party hereto waives said provision as it may relate to any demands, claims and counter-claims with respect to the real estate being transferred, the above identified Declarations of Covenants and Restrictions, Agreements and Covenants Running with the Land and boundary misalignment and any other related or unrelated matters 'which - 5 - I L( -( 3 were or could have asserted in any way between the parties which said parties do not know or suspect to exist in their favor at the time of executing this agreement and, which if known by them, must have materially affected their decision to enter into this agreement. The parties hereto hereby assume full responsibility for any damages, losses or other liabilities that they may have or hereinafter incur by reason of any alleged acts, misfeasance or nonfeasance by any of the parties hereto relating to those demands, claims and counter-claims. 10. The City reserves the right to require a Phase I report on all real property being donated. Homeowners shall make disclosures about said real property to the City prior to execution of the agreement. The City shall have a due diligence period in which to investigate the property. 11. Should any dispute arise with respect to this agreement, the prevailing party shall be entitled to all costs and expenses, including costs of investigation, legal fees and court costs, which said prevailing party may have incurred in resolution of said dispute, whether such resolution is by way of judicial action or compromise. 12. This agreement shall inure to the benefit of and be legally binding upon the parties hereto and their respective servants, employees, agents, heirs, legal representatives, successors, attorneys and assigns. 13. This agreement may be executed in any number of counter-parts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. Signatures by facsimile shall be deemed acceptable as original signatures. - 6 - (<-(-fC( 14. Attorneis fees, costs and expenses paid, accrued or incurred with respect to the release of all claims pursuant to this agreement, including without limitation, the attorneis fees related to the negotiation and drafting of this agreement shall be paid by the City. 15. Each party warrants and represents that in executing this agreement they have relied upon legal advice from the attorney of their choice; that the terms of this agreement have been read and its consequences (including risks, complications and costs) have been completely explained to them by that attorney; and that they fully understand the terms of this agreement. Each party further acknowledged and represents that, in executing this release, they have not relied on any inducements, promises, or representations made by the other party representing or serving the other party . 16. The parties to this agreement acknowledge and warrant that their execution of this release is free and voluntary. 17. Each party to this agreement shall cooperate fully in the execution of any and all other documents, including without limitation, agreements and/ or deeds documenting the transactions described in this agreement, and in the completion of any additional actions that may be necessary or appropriate to give full force and effect to the terms and intent of this agreement. 18. This agreement contains the entire agreement between the parties and may not be modified except in a writing signed by all parties. - 7 - (y-(f 19. This agreement shall become effective irmnediately upon execution the City and Homeowners. 20. This agreement is entered into, and shall be construed and interpreted in accordance with the laws of the State of California. Dated: THE CITY OF CUPERTINO By: Mayor, City of Cupertino Dated: BYRNE A VENUE HOMEOWNERS ASSOCIATION By: ATTEST: City Clerk State of California ) ) ss. County of Santa Clara) On before me, , a Notary Public in and for said state, personally appeared J personally known to me, or proved to me on the basis of satisfactory evidence, to be the person whose name is subscribed to the within instrument and acknowledged to me that he/ she executed the - 8 - (l\-((p same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed this instrument. Witness my' hand and official seal. - 9 - {l{- t7 Exhibit F ""-$'.J.";t/;}}l?J1Jf!!!!!!!!!!~~~,,, x..",:$.. ..,<< ,>>,,~~,."" w~__A' wy." ,..."'.....1t" ....,. ^""~ . ~~~~i~~~ H11 ~ '>i:,.:'.~^,,^.~n^Il--",:,,'''-N~':''~''''':':'~':~''''''- 'f' ...,..",:<:~"..;:~~."",..> *' ~~'" ~"'''~'<'~b. ,,:;.....,~~~NN"".7:>~~?;. ~"'~~xz.;,...----,. ," ,,' ~:~~,.:?:::'.;:"~:.~"'.. ill ~.. .,~,-"<" ' ow '...... ';;.,;';'''~ .,_,,*,~' ~''$.''''''~~ r''i(''( ~l, !!~ ..~~ .-:::.~;;;,~ I ~ "fiPJ!J%.~"'^:'::::':::';' '.M: H HI I "'~. r .-"...",*:;i"~ l~::~>#"?:~;('-'- j'~\ l,.;,clf""""", 1~1' " 1 :X>'1;Ji;;'L~"""" !:..~~''''\Y' 'I~ "" ,,'" > I~"'::'" ,. , L ~ ',: _,..-,'w'$,--"""'-'-711l ""'", fu ~ :"""'", I ! iKx'''' '1''\';''-,,, ~ ,.) ... :lo.~..... ~..,(' i--'. ~ ... :l;' ...", - . :~ ._, "w,-'-",,:,''l':~.,," /': '^...." ~ > x. I ,;-/ ,""'"""'..,""'<.....~~ "', h.." ,....." '.,<. ,.1 I h,- "" j" v' ]I ,~, ,,, / ~_~t " -"'-J;:g,"'~"'1' I F"" ..,"'g "'..t ,~~ ,/ ',",~l /" ."~&:'-M=-""""::::;"_'_W"'"'' __":",,,~:,,,<;;,,,,~:':"'>"1f'''''~''' ;i "'<,/ : t:~ :$<; " ", ".._ ~ ~ /" ::"",~"""w'::::;:':::'y""'---::....-~=rt"'''''''' ..-.." -"N_':~*- " .; ,,", : I f~~~~~~j~~~%\. l'--"~--~w_~""~~"" """".,..","--~::;-"~ """~ 1 l """^.",,, '''''<:'''"''' 'I; ~.v......w.. _~,"'~{'d::~..-w-......,____~ '1" ~ ~~,.,; li'.,.,,'---_ -:""'""" """",,"""; ;..,._..,.".........~ ,,"_ ,~,w_-,~"~ . ....,-~ ! ~l'<-,,_ ^'""'... """'-^. """".; ~.~~_::~..::::,: ll.,.""",~:::1 -_.~.>> ('''_:::'",^",::~",-"",;,^'''''''-^n l~~-.w""~ ~~,~, .,_"..,~,__.w.J N -w, ,",.",., "'w ,. ~"",,,,,,,,,,,,,,~,,,,,,,-,,,,,,,,^,,,,""""":-"^"''''.. ~:~~~~_~. l'~~~ ~ ~: .~~ ~......-..... ..~~ ...."t.~~ ~. . <<-~'i'."{' ,~~.. ->-"yP...._..-1 1'- ....^-" "",." "'-x.!" jC::::::::.:,w,,'~ ~-"-<'''''''"'-'.,'' '~":::q l'Ioo"...............__........ -""'................."A,::::"........~f ~:' ,:~ ~~_~.._^............",,~...~.. I """""'".~ ~.....--. ~......~~ '\,_._"~.,-_._.,,~ '>\ \ --- -........ -'''''~' -.; ,. l ,s.'^,."-,,,.,"".~~~-'- ." f=::_ "',~.. ...."" , ~_~".........._~. .' . .w' .....'._,'" =-.... ._-"'. l t . J .......~.">_.~._~.,,, ,~~~~- .,:.:.'!-.~-;.~f.,..""JP.'>>:r~... ".._~'" "'''"''^~ I .~.,.<::.,~,.:~~:..:-~~'<:=...:~:e::...:~~:.. ~~~~>>... .,,---~~. -~ w'~''''~h.. .,>>..,..;:::::>""""~"""_"""'" ..,.,~.",._.~' "",y. ._,_~ VN". ~ i'*" """t,,:?~::;;',*;~?,?''C ~~i~~:$;%f.ie:~~']~i~ ::,;::~x<::::::::.,-.J ~::::-.:::::::::",:::j ~:(~,.., ~d'''' .,..... ,,_~,,"'"'''''''''''''''''''''''''''_''M''''>''''''_''''W'''''''P-~''''' ,~.~ -'~~., '^'" '-'"",-, ''''''"'''- }",~.....~ ,....,_,,___w.YWW'W-yy.""',._,.,......._-'_.....,......-~-'--'" ' H ~"._ "''''~--...... 'N.....".._"'_ -""'-w,,",,_. .-:-"11"""'''':'' x, \ :,...""..V'.............-.............::..;....;. t........................~ ('.MY,.,.~'>'...."..>)o.~-rP ' , l 3::'''~'' -,- --"".x ^'"'''''' 'C'x"- '" ~=t' .;. '''--'1 ~....:=:> IT:'::: I;'::::::.{ ~ ;;~""Ti ',.,~~,,=-w"l! ~t ~,,"""~':::"" ...."'w. ___==::"'....-,.::..:::....:=,::(..:::~~:i.:,:'\ Cl j ~ n!lllf ,.......... liBI i=~ i L '"'"'\1 '.'4"/l!111-" __~_~jL::-..:.""" I ~ .1 :,:.",,,- . i l~):~ ~",-~,,".f "~~~l~ l . .<.o,..J' ~ ""'1, .~:,:: i 1--" '''.'''''"-....,,...~...~, .--_'"^'._._~.):r-w.........~...".>.:i.; .",*- t^'~11 ~-<<""!1 : <~., ,,,.,,,,,......,;. 111t'1'~rl t't~ ~ ~ f-""""'..;:j' I",! t -+....~",-..i ~_w.>,..,""'~,,_) ---'W^''''''_N''~~' l"",,v-f 1 },,__~ ~ l~"%~ i I t; ..: 1<\;1 I ~~---J' ~ ~---.;~ I~' ~ ('~"'-"""'''- ! " t"'..~-., . !.w,'.~,__...,,._......i ',. v . V ' '. ~1'><{ ~~,', ~>' ". &"W:,. , """"', '^'" .-- ! ,,_, ~ t...-....,...,,: Ii 4"$;}. .; ; I ,x~, 1 !M~,,,w._'_" !;,... 1, .q F-'l~ ; ! "'-"""'i~ -~-,,-' !~.:;j r " L~'"",^,;,J ll' r'':''t~:::j I . ~ J~",,---A 'I'J'::=~l~ :x.~ .~r,w'-"l-w",,,,,,,,~ l'<' 1 f"""'-"'w~ !-...<.w....,=:::~::1 ~.:,<'-~~;.:;~#~:k.~<'''''''~'~'~\ '.1" ,I..~L""_,J: I=, llf"-'''-,,,y,,,~,,,,~~ .t.-J Il~~~ c!. ,r.:...'.'.r'c..c.....,^"y."""~.."_E.:JL>..,.'-ir""""-......"."..,,,-Jl i..,...........;.;~~<s;.............. ....:~~'::.::....~x~", ';" . ..~k...":""=-~~.~.....;t...~~..........--j ~f.'~-x.._..."'~-l.l :" .~{ : :~~~~' :~,~~~.< '. .........."^..~~..~..""..'^"......it~~'X- l _.__~! .. ",':hX..........A'..."'.~l' ......,.. r..........~ ',' ~, ,.......Y.- < ,. } (},>L:;:;;;:;::;;;:;~i, "'S;':~ -'~=::l! r""t~~:-:::=::;:~"""lE:::::-~ ''^''"'''"..,,-. ,~.",",.,....x,""~.,..,,._,) ^'i: : ........-_>'-~, j ; f"w''''<~'~.,..'''''''~,...y''W'''~''_..~' l! '--, )<~<<:l,{:~~~:\:::.;.:::~t::::I:~zt~:"!;:t:k;::::,:::::l tr."w....,_.....~,-~"~-_..."-:::=:t=:.' .. ----"'.:.~, ir-:--~ '-f ~ _",~.,'( 't' ~l "<..r.... t ~...._<<........,..N.-_'.....{t-.......,.-..,.......,,~~~,~,~ _.'\,.''''''~'_'''~ 3:l""__w""...'-..y"r~".-""'"'''''''.w....'''..w,."w._..'w.'wl' ,,,~~y._,.,~...._w~ .'m~ '~"""'.,...".mv.c~,.::::::::;;:;:;;:;:-..::~:~;::;;;;~~ b::~.:::;:~:><.<.'>";:'>,.<' (L{-Lf LETTER OF INTENT FROM BYRNE AVENUE HOIVIEOWNERS ASSOCIATION TO THE CITY OF CUPERTINO AS DETAILED IN THE RECITALS OF THE ATTACHED "TANK HOUSE AGREEMENT" . DATED / ff JUL Y, 2006, WHICH, BY REFERENCE THERETO IS INCORPORATED HEREIN AND MADE A PART HEREOF THIS LETTER, THE BYRNE AVENUE HOMEOWNERS ASSOCIATION HEREBY DONATES 1:'0 THE CITY OF CUPERTINO THE FOLLOWING REAL PROPERTY AND IMPROVEMENTS AS DESCRIBED IN SAID RECITALS: 1. THAT CERTAIN STRUCTURE KNOWN AS THE TANK HOUSE, AND THE LAND THEREUNDER, AS FURTHER DESCRIBED IN PARAGRAPH 2a IN SAID AGREEMENT. 2. A STRIP OF LAND ALONG THE WESTERN BOUNDARY OF THE PROPERTY, ADJOINING PROPERTY KNOWN AS THE BLUE PHEASANT SITE AS FURTHER DESCRIBED IN PARAGRAPH 2b IN SAID AGREElvlliNT. 3. A STRIP OF LAND ENCOMPASSING THE EXISTING WALKWAY / BIKE PATH RUNNING PARALLEL TO STEVENS CREEK BOULEVARD ALONG THE NORTHERN BOUNDARY OF SAID PROPERTY FROM THE BLUE PHEASANT SITE TO BYR-NE A VENUE,AND FURTHER DESCRIBED IN P ARAGRAPH2c IN SAID AG NT. Subsclibed al}-~ sw m pefore me on this 18th day of July, 2006 by 'Jj (r . '-. --e/ , pers?nally kl1?iiVn to me or proJed to me On the 1 aSlS of satIsfactory eVIdence to oe the person Vil.P appeared &fure~ j 1 /It ~/'I' ) -"- -^- -^- /'- '" .... -^- '" ~ ~ .... -^- -^- f Signature /iI, .I ;/1,;' " ,.. MICHAEL J, MARtiN ~ t'-+, () . COMM, # 1615921 Gl ~ ' . NOTARY PUBLIC - CALIFORNiA (') ~ SANTA CLARA COUNTY COMM. EXPIRES OCT. 23, 200Q ::.. Z{A /,~/ ;/{,'U:O;';-//L/,-_J ///' PO-Vie i CD L / v (L(.-f9 l/l.PZ. ?;/ cej/bc.A Rl HARD E. WIDCKER /, I ".l.'"1J \ WEBSTER B. MEIER, JR. (RUSTY) StIIW of Callforn.. CaurttY - . :::; A-0TA c. L"AeJ0j, " . Subscribed and sworn to (or IlMfmed) . Before me OJ' this 2.i <r day, CJf:T"U L-'1, ~ ,-. _ R iLHAl<D c - \.A.n11c..k..e~ANi) 91ARcI\J; k..>'0clZ..!tit2uP penon.11y kAo\!Vn-te me or proved to me. ~ ~sls of satisfactory evidence to be_ ., personCiJ who .PpMr~ Wore me. 'Slgnature ..' " . ~ht. '.. CS-I) r-~~~-~~~~~~~J DAKSHA K. PATEL . CommissIon # 1575295 ~ z ~ ~ ~ . .. Notary Public - California ~ ~~,,";'.. .... " Santa Claro Couoly - ....,:~" " My Comm, Expires May 2,2009 F'C(Cf .e ---- .) 1t 13 1- {.--- . -~ /'~', / { \.{ - 20 RICHARD E. WHICKER SHARON K. NORTHRUP '- (.AJ ~ ~) ~ r(l/~A/l Jf, ( (i:rJ~yi) WEBSTER B. MEIER, JR. (RUSTY) , .~f {y- 2 i JURAT ~-'-'- I, State of '-'..,. - '., - " ".,~ -, ~-C(7~RX'"~~RRJ;fXRR.&:''c{>o<'.c<-;Q(>;Q(>,G<'J;fX,(';N''j.(.~c<X~.itK:~~J;fX~;:X:;- I' I'. I': ELIZABETH PAPADAKIs _@-,.',.commlsslon#1631214'..l; i . -,,; Notary Public - CallfomlO ! j Santo Clolo COI.rIIy I . " My Corrm. ExpilEl& Dee 18. 2(lO9 """!V""___________.....--....-. Subscribed and sworn to (or affirmed) before me this J 1-f'li- day of .J u l \.1 Dale ~nth (1) VvetJs\-t( n. J11Q i er ~ ,) I 'I 'I 'I ~ 'I I QatRoen(Qv County of gc(rl~0\ C\ oy(;,- } 55 I: I, Name of Signer(s) il0\u>J:Y pU \1tA L J '.I J 'I "I ,I ,~ 'I .I Name of Signer(s) (2) --- Signature of Notary Public OPTIONAL 1(: ,) Though the information in this section 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, Top of thumb here I ,~ ;~ I 'I ~( . Description of Attached Document Top of thumb here I r- i r It' 1. --H407 Sv r /lC ft1,~- Title or Type of Document_<J-I::'+ . e( {),t- I tlJl:tlr: Document Date'0 iJ ( Y \ sf- .2CG:lC Number of Pages:--rvV 0 Signer(s) Other Than Named Above: leY( i Hcrltl j R1Chctn:{ t, wV1 IcXer ,~\f\(Hrl)y))\. North ruO - ( , I ,) l' ~ ) ~ 'I . - . . . (!. ,.. - .' ~ " -- ,', - -' " ~ '^ , -.., -..;.- - -'< .~ , ~ ,.. .~ .~ ~ - ~ ,{ '- @ 1999 National Notary Association' 9350 De Soto Ave" PO. Box 2402 . Chatsworth, CA 91313-2402 -'~-g;,.'9iJ - ' Prod. No. 5914 ~. -~ Reorder: Call Toll-Free 1-800-876-6827 ('-{ - :22... TANK HOUSE AGREEMENT This agreement is entered into in the Santa Clara County, California by and between Byrne A venue Homeowners Association, hereinafter referred to as llHomeowners11 and the City of Cupertino, hereinafter referred to as llCityll. RECITALS A. Homeowners own the real property described as Lot 6, Tract Number 6574, filed for record in the Office of the County Record of the County of Santa Clara, on the 13th day of June, 1979, in Book 443 of Maps at Pages 34 and 35. (Exhibit A - Attach legal description of property owned) B. The above-described real property with an historic Tank House thereon is subject to both a Declaration of Covenants and Restr"ictions recorded in the Santa Clara County Recorder's Office on June 28, 1979 and Agreements and Covenants Running with the land recorded on 1980. C. Said Declaration of Covenants and Restrictions states: "The Byrne Avenue Homeowners Association shall maintain the Tank House structure in reasonably good condition and repair shall be borne by the Byrne A venue Homeowners Association." D. Complete maintenance of the Tank House has not been undertaken by the Byrne Avenue Homeowners due to incompletion of contract between Bryne Avenue Homeowners and vVestwind Development, rne. (See Exhibit B - Letter) E. Homeowners desire to donate to the City in fee certain portions of said real property free of the aforementioned Declaration of Covenants and Restrictions - 1 - I L(- 23 including amendments thereto, if any, and free of the aforementioned Agreements and Covenants Running with the Land including amendments, thereto, if any. F. The intent of the above transfer is the assumption by the City of all responsibility for the renovation, restoration, maintenance, landscaping, operation and use of the Tank House and to allow the Homeowners a charitable tax deduction. G. The City and the Homeowners also desire to resolve the boundary misalignment that exists along the west boundary line with the Blue Pheasant Restaurant site and to locate the public pathway along the north property line within the public right-of-way. AGREEMENT In consideration of the parties mutual promises, covenants, and conditions contained below, it is hereby agreed as follows: 1. The recitals herein above set forth are incorporated into this Agreement by this reference as though fully set forth at length verbatim. 2. Subject to the terms of this Agreement and conditioned upon the Homeowners1 reasonable approvals as set forth below, the Homeowners shall transfer to the City in fee all of the following: a. The land under and around the Tank House structure for restoration and use as a historical site as described on Exhibit C (Map by surveyor) {\\'ith each bnund,w\', nut tn t'\:ce~_'d hftet'll feeJ:JJ.2JJr0}11 12<.:1(11 U11TI\.:'r {: b. A strip of land along the west property line boundary with the Blue Pheasant Restaurant site as described on Exhibit D (Survey Map provided by Public Works) jiI~~Jj~~1J:~JJ~J' 1"(,~: 11 U2_tllt';.<111.j__~Ld:~:~;_f'l~~:Iilb__jJ.Ll1J. ,1 '---~ S _~~~__~-~~ i lL..t:0l~1. \.1 (.} r >~J c. A strip of land encompassing the existing walkway/bike path along Stevens Creek Boulevard from the Blue Pheasant Restaurant site to Byrne 1l{-lL( * lJi..}), 7 Aa e'}. () erJEJlJ of? - 2 - I..I1J1d be-/-wee h -f,h e IrltnR IJovs: a/1 d +Ae )f/<mtwesr c'OlJrle~ 0(' 1..-(11 t:, -rrAlOI I\/VIY1-0ete 6S7t/; w/hc..hI . _ ~ I _/ _ I _ ,_ h ~ /-1 ~... .... -r/A ,_ '" ~ 40 1Jg r-';" y . Avenue as described on Exhibit E (Map by Surveyor) :Nc~0~.~o:J.J~.LW.l bPh\'I,,-.n '-lIlT' ,pt f,'+4..~ -'1',-1 "j,l,o'''al-k-,- . '--..c-"-_ - - .. - ~ --~'~'--'--'-'-~---~-~/<--VL- 3. The parties mutually agree that the aforementioned transfers of real property are to be properly documented as reasonably necessary by land surveys, legal descriptions, agreements, lot line adjustments and/ or dedications and/ or deeds, including, without limitation, documentation reasonably necessary to accomplish the land transfers free of the aforementioned Declaration of Covenants and Restrictions and Agreements and Covenants Running with the Land to allow Homeowners a charitable tax deduction. All costs associated with the land surveys, preparation of legal descriptions, agreements, lot line adjustments and/ or dedications and/ or deeds, including, without limitation, the fees charged by a surveyor, attorney fees, notary fees, and recording costs shall be borne by the City. 4. The aforementioned transfers shall benefit the Homeowners with the following equitable servitudes or restrictive covenants running with the land. a. The City shall assume all responsibility, including, without limitation, all financial responsibility for the renovation, restoration, operation, landscaping, maintenance and use of the Tank House building. b. The City shall use the aforementioned real property (Exhibit C) as a historical monument for the Tank House. c. None of the h'ansferred property (Exhibit C) shall ever be used for parking or for anything other than the operation of the Tank House as a historical site. - 3 - {~-1S d. Should the Tank House be removed from the property, demolished or destroyed, the City shall reconvey that portion of the land back to the Byrne Avenue Homeowners Association. 5. The City intends to coordinate a community volunteer effort involving service organizations, the historical society, private businesses, and contractors and individuals willing to donate time and rnaterials to renovate and restore the structure to its original condition as shown in the attached sketch (Exhibit F). 6. The City shall erect and maintain, at its sole cost and expense, a decorative fence made out of wrought iron or white pickets or similar attractive materials, along the boundary line separating the Tank House from the remaining common area lot. 7. The City agrees to hold harmless and indemnify Homeowners and each individual member of the Byrne A venue Homeowners Association, including, without limitation, any corporation or other entities controlling, controlled by or under common control with the Homeowners from and against any and all claims arising from injury to persons, loss of life or damages to property occurring in or about all real property being transferred to the City by virtue of this Agreement and from and against any and all costs, expenses, liabilities, including, without limitation, reasonable attorneys fees, incurred by the Homeowners, and/ or its individual members, or any of them, or in connection with any such claim or any proceeding based thereon, to the extent such injury, loss of life, or damage arises out the negligent or willful act or failure to act of the City, or any of its officers, employees, agents, contTactors, licensees, visitors, guests or invitees. - 4 - (Lz - 2--~ 8. The City and the Homeowners for themselves and their successors, servants, employees, agents, representatives, attorneys and assigns do hereby release, remise, exonerate, and forever discharge the other, and each of their respective servants, employees, agents, representatives, attorneys and assignees, from any and all manner of actions, suites, debts, accounts, contracts, agreements, conh"oversies, judgments, damages, claims, liabilities and demands of any nature whatsoever which they ever had against the other, now have, or hereinafter can, shall or may have for or by reason of any act, transaction, practice, conduct, matter, cause or thing of any kind or nature whatsoever relating to any demands, claims and of Covenants and Restrictions, Agreements and Covenants Running with the Land and boundary counter-claims with respect to the real estate being transferred, the above identified Declarations misalignment and any other related or unrelated matters which were or could have been asserted in any way between the parties hereto. 9. With respect to this agreement and release, each of the parties acknowledges an awareness of the provisions of 91542 of the California Civil Code, which provides as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. Each party hereto waives said provision as it may relate to any demands, claims and counter-claims with respect to the real estate being transferred, the above identified Declarations of Covenants and Restrictions, Agreements and Covenants Running with the Land and boundary misalignment and any other related or umelated matters which - 5 - {l{ -2 7 were or could have asserted in any way between the parties which said parties do not know or suspect to exist in their favor at the time of executing this agreement and, which if known by them, must have materially affected their decision to enter into this agreement. The parties hereto hereby assume full responsibility for any damages, losses or other liabilities that they may have or hereinafter incur by reason of any alleged acts, misfeasance or nonfeasance by any of the parties hereto relating to those demands, claims and counter-claims. 10. The City reserves the right to require a Phase I report on all real property being donated. Homeowners shall make disclosures about said real property to the City prior to execution of the agreement. The City shall have a due diligence period in which to investigate the property. 11. Should any dispute arise with respect to this agreement, the prevailing party shall be entitled to all costs and expenses, including costs of investigation, legal fees and court costs, which said prevailing party may have incurred in resolution of said dispute, whether such resolution is by way of judicial action or compromise. 12. This agreement shall inure to the benefit of and be legally binding upon the parties hereto and their respective servants, employees, agents, heirs, legal representatives, successors, attorneys and assigns. 13. This agreement may be executed in any number of counter-parts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. Signatures by facsimile shall be deemed acceptable as original signatures. - 6 - ll(- 2.f 14. Attorneis fees, costs and expenses paid, accrued or incurred with respect to the release of all claims pursuant to this agreement, including without limitation, the attorneis fees related to the negotiation and drafting of this agreement shall be paid by the City. 15. Each party warrants and represents that in executing this agreement they have relied upon legal advice from the attorney of their choice; that the terms of this agreement have been read and its consequences (including risks, complications and costs) have been completely explained to them by that attorney; and that they fully understand the terms of this agreement. Each party further acknowledged and represents that, in executing this release, they have not relied on any inducements, promises, or representations made by the other party representing or serving the other party. 16. The parties to this agreement acknowledge and warrant that their execution of this release is free and voluntary. 17. Each party to this agreement shall cooperate fully in the execution of any and all other documents, including without limitation, agreements and/ or deeds documenting the transactions described in this agreement, and in the completion of any additional actions that may be necessary or appropriate to give full force and effect to the terms and intent of this agreement. 18. This agreement contains the entire agreement between the parties and may not be modified except in a writing signed by all parties. - 7 - 1l(-11 19. This agreement shall become effective immediately upon execution the City and Homeowners. 20. This agreement is entered into, and shall be construed and interpreted in accordance with the laws of the State of California. Dated: THE CITY OF CUPERTINO By: Mayor, City of Cupertino Dated: BYRNE A VENUE HOMEOWNERS ASSOCIATION By: ATTEST: City Clerk State of California ) ) ss. County of Santa Clara) On before me, , a Notary Public in and for said state, personally appeared J personally known to me, or proved to me on the basis of satisfactory evidence, to be the person whose name is subscribed to the within instrument and acknowledged to me that he/ she executed the - 8 - I L{ - ]{) same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed this instrument. Witness my hand and official seal. - 9 - (L('-3/ LC-/ C( -V-I.-()h:it Ii REViSED EXHIBIT'\' TANKHOUSEAGREEME . " ' This agreement is entered into in the Santa Clara County, California by and between Byrne Avenue Homeowners Association, hereinafter referred to as "Homeowners" and the City of Cupertino, hereinafter referred to as "City". RECITALS A. Homeowners own the real property described as Lot 6, Tract Number 6574, filed for record in the Office of the County Record of the County of Santa Clara, on the 13th day of June, 1979, in Book 443 of Maps at Pages 34 and 35. (Exhibit A - Attach legal description of property owned) B. The above-described real property with an historic Tank House thereon is subject to both a Declaration of Covenants and Restrictions recorded in the Santa Clara County Recorder's Office on June 28, 1979 and Agreements and Covenants Running with the land recorded on 1980. C. Said Declaration of Covenants and Restrictions states: "The Byrne Avenue Homeowners Association shall maintain the Tank House structure in reasonably good condition and repair shall be borne by the Byrne Avenue Homeowners Association." D. Complete maintenance of the Tank House has not been undertaken by the Byrne Avenue Homeowners due to incompletion of contract between Bryne Avenue Homeowners and Westwind Development, Inc. (See Exhibit B - Letter) E. Homeowners desire to donate to the City in fee certain portions of said real property free of the aforementioned Declaration of Covenants and Restrictions including amendments thereto, if any, and free of the aforementioned Agreements and - 1 - Covenants Running with the Land including amendments, thereto, if any. F. The intent of the above transfer is the assumption by the City of all responsibility for the renovation, restoration, maintenance, landscaping, operation and use of the Tank House and to allow the Homeowners a charitable tax deduction. G. The City and the Homeowners also desire to resolve the boundary misalignment that exists along the west boundary line with the Blue Pheasant Restaurant site and to locate the public pathway along the north property line within the public right-of-way. AGREEMENT In consideration of the parties mutual promises, covenants, and conditions contained below, it is hereby agreed as follows: 1. The recitals herein above set forth are incorporated into this Agreement by this reference as though fully set forth at length verbatim. 2. Subject to the terms of this Agreement and conditioned upon the Homeowners' reasonable approvals as set forth below, the Homeowners shall transfer to the City in fee all of the following: a. The land under and around the Tank House structure, as depicted in Exhibit F, for restoration and use as a historical site as described on Exhibit C (Map by surveyor) (T,vith eLlCh boulilbry, nut to exceed fifteen CHi') from ec,<ch cmnerwith thc cxcl'ptim".. of land between: the tLmk how;e ,tlld the Ilorthwe~;t corner of Lot 6, TrLlCt N'c.lmber 65+4, which may be incbded in the trall~;fl'r of property.) b. A strip of land along the west property line boundary with the Blue Pheasant Restaurant site as described on Exhibit D (Survey Map provided by Public Works) (indicated by present ping and stakes presently in place on said boundary.) - 2 - c. A strip of land encompassing the existing walkway/bike path along Stevens Creek Boulevard from the Blue Pheasant Restaurant site to Byrne Avenue as described on Exhibit E (Map by Surveyor) 3. The parties mutually agree that the aforementioned transfers of real property are to be properly documented as reasonably necessary by land surveys, legal descriptions, agreements, lot line adjustments and/ or dedications and/ or deeds, including, without limitation, documentation reasonably necessary to accomplish the land transfers free of the aforementioned Declaration of Covenants and Restrictions and Agreements and Covenants Running with the Land to allow Homeowners a charitable tax deduction. All costs related to this transfer of real property including costs associated with the land surveys, preparation of legal descriptions, agreements, lot line adjustments and/ or dedications and/ or deeds, including, without limitation, the fees charged by a surveyor, attorney fees, notary fees, and recording costs shall be borne by the City. 4. The aforementioned transfers shall benefit the Homeowners with the following equitable servitudes or restrictive covenants running with the land. a. The City shall assume all responsibility, including, without limitation, all financial responsibility for the renovation, restoration, operation, landscaping, maintenance and use of the Tank House building. b. The City shall use the aforementioned real property (Exhibit C) as a historical monument for the Tank House. c. None of the transferred property (Exhibit C) shall ever be used for ~parking h1 or for anything other than the operation of the Tank House as a historical - 3 - site. d. Should the Tank House be removed from the property, demolished or destroyed, the City shall reconvey that portion of the land back to the Byrne Avenue Homeowners Association. 5. The City intends to coordinate a community volunteer effort involving service organizations, the historical society, private businesses, and contractors and individuals willing to donate time and materials to renovate and restore the structure to its original condition as shown in the attached sketch (Exhibit F). 6. The City shall erect and maintain, at its sole cost and expense, a decorative fence made out of wrought iron or white pickets or similar attractive materials, along the boundary line separating the Tank House from the remaining common area lot. 7. The City agrees to hold harmless and indemnify Homeowners and each individual member of the Byrne Avenue Homeowners Association, including, without limitation, any corporation or other entities controlling, controlled by or under common control with the Homeowners from and against any and all claims arising from injury to persons, loss of life or damages to property occurring in or about all real property being transferred to the City by virtue of this Agreement and fr.om and against any and all costs, expenses, liabilities, including, without limitation, reasonable attorneys fees, incurred by the Homeowners, and/ or its individual members, or any of them, or in connection with any such claim or any proceeding based thereon, to the extent such injury, loss of life, or damage arises out the negligent or willful act or failure to act of the City, or any of its officers, employees, agents, contractors, licensees, visitors, guests or - 4 - invitees. 8. The City and the Homeowners for themselves and their successors, servants, employees, agents, representatives, attorneys and assigns do hereby release, remise, exonerate, and forever discharge the other, and each of their respective servants, employees, agents, representatives, attorneys and assignees, from any and all manner of actions, suites, debts, accounts, contracts, agreements, controversies, judgments, damages, claims, liabilities and demands of any nature whatsoever which they ever had against the other, now have, or hereinafter can, shall or may have for or by reason of any act, transaction, practice, conduct, matter, cause or thing of any kind or nature whatsoever relating to any demands, claims and of Covenants and Restrictions, Agreements and Covenants Running with the Land and boundary counter-claims with respect to the real estate being transferred, the above identified Declarations misalignment and any other related or unrelated matters which were or could have been asserted in any way between the parties hereto. 9. With respect to this agreement and release, each of the parties acknowledges an awareness of the provisions of 91542 of the California Civil Code, which provides as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. Each party hereto waives said provision as it may relate to any demands, claims and counter-claims with respect to the real estate being transferred, the above identified Declarations of Covenants and Restrictions, Agreements and Covenants Running with - 5 - the Land and boundary misalignment and any other related or unrelated matters which were or could have asserted in any way between the parties which said parties do not know or suspect to exist in their favor at the time of executing this agreement and, which if known by them, must have materially affected their decision to enter into this agreement. The parties hereto hereby assume full responsibility for any damages, losses or other liabilities that they may have or hereinafter incur by reason of any alleged acts, misfeasance or nonfeasance by any of the parties hereto relating to those demands, claims and counter-claims. 10. The City reserves the right to require a Phase I report on all real property being donated. Homeowners shall make disclosures about said real property to the City prior to execution of the agreement. The City shall have a due diligence period in which to investigate the property. 11. Should any dispute arise with respect to this agreement, the prevailing party shall be entitled to all costs and expenses, including costs of investigation, legal fees and court costs, which said prevailing party may have incurred in resolution of said dispute, whether such resolution is by way of judicial action or compromise. 12. This agreement shall inure to the benefit of and be legally binding upon the parties hereto and their respective servants, employees, agents, heirs, legal representatives, successors, attorneys and assigns. 13. This agreement may be executed in any number of counter-parts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. Signatures by facsimile shall be deemed acceptable as original signatures. - 6 - 14. Attorney's fees, costs and expenses paid, accrued or incurred with respect to the release of all claims pursuant to this agreement, including without limitation, the attorney's fees related to the negotiation and drafting of this agreement shall be paid by the City. 15. Each party warrants and represents that in executing this agreement they have relied upon legal advice from the attorney of their choice; that the terms of this agreement have been read and its consequences (including risks, complications and costs) have been completely explained to them by that attorney; and that they fully understand the terms of this agreement. Each party further acknowledged and represents that, in executing this release, they have not relied on any inducements, promises, or representations made by the other party representing or serving the other party. 16. The parties to this agreement acknowledge and warrant that their execution of this release is free and voluntary. 17. Each party to this agreement shall cooperate fully in the execution of any and all other documents, including without limitation, agreements and/or deeds documenting the transactions described in this agreement, and in the completion of any additional actions that may be necessary or appropriate to give full force and effect to the terms and intent of this agreement. 18. This agreement contains the entire agreement between the parties and may not be modified except in a writing signed by all parties. - 7 - 19. This agreement shall become effective immediately upon execution the City and Homeowners. 20. This agreement is entered into, and shall be construed and interpreted in accordance with the laws of the State of California. Dated: THE CITY OF CUPERTINO By: Mayor, City of Cupertino Dated: BYRNE AVENUE HOMEOWNERS ASSOCIATION By: ATTEST: City Clerk State of California ) ) ss. County of Santa Clara) On before me, , a Notary Public in and for said state, personally appeared , personally known to me, or proved to me on the basis of satisfactory evidence, to be the person whose name is subscribed to the within instrument and acknowledged to me that he/ she executed the - 8 - same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed this instrument. Witness my hand and official seal. - 9 - fo R.- RE FE R.B N C5 vAR'i ' 51-161 H\ L.- 'f +to He-owN E:K5 10 ONL-)'. FINAL. PIZOPE:R..1"'j ~I NcS HA.,/ -n-tt: 'TO AcceS$ Po~ '11-1'6 Rc. 1--1"'-1 N DE. R. /...O\". hCLD t---{ M 0 DATE $' ..... ---~----- -"-'-'~--- tl;~::.--~ j.~ I ! 1 , \ \". I ----- .---- --.- --- _.~~. h ___------""'"~'"O~,, """r"$:::~:"::~.:=~:;:;;"O'"",""'"""~-"""'."' " - '"--~...."..".""",.~~~ , \' (/'j", c'. ,. "','" ,'r'," " j /',",.,0' ,,',';-'-;' Fe.d",!: j..',,"'./' /'/ ' ,.//1 ~''',1')~.L''''''''F.,.' ,'/ .../:......... ..,...:.('\~ .. ~ 'I..' ~:; i.. "':;: ~.:- t 1- .,.... '$ .. l.r,../ ...;., L..! ....i;J ~..~ .....~ t,' L . .r/U ""/L' ~;"-'" ~~..- I "~ " /. 9_",-' -~. ire '~.. ~\ ',BIKE/PEDE5fRIAN PATH- /?t5'3~' l G \ \'i I ~ i. 5l!.J4. ',.,I\-!\' ~. ~ -r"f 00 _~~__- ll, l< )< ';<'.' 445f:f;?J-li-.~\~)Ol{'--h.;'~ '- PROPOSeb PROP. L-INE: · ')~\,,! (\\ 9/ '//\" //6'3i'5/J::J8NE d i'l') <;; ~. .//<,. I ~.,------,~,);; I. <' ~ ",<- ,\V ;f?c,r:J-f,r:, ..-,AS'$ . , . '",',",""''1-' -I" u'P ~\> 1. < 8 ...."'0'... . i'o:..t\:J - f. t1 'I ~&.. v.t;<. j \~':3 \ 1 ~. 1...J 1. 9--._....-..a~.\6--=-'..; ,,,-1' ,,<" ", (' \ ('J LO "fi'P r.v L .' / ~/e'39{ (. :11\t1 ~ ~~ o0~' l^" '\, , 01) ~" i... I I' l (\\ :5 00'"\ \'i,~- Y. <-"';' /)<.----15M . !'l.:.~ Illy 4352 u<'.F i: \ "':\' . ~ \ ,0-,,0) ,./ .<; VI ~ 1 [j \" // ~ \ ~\ ~ ,1"" //..."7" ,Ii/i'!.90!j/l'.j8'~ I/('f/() / ,,,&...\1 ~,:~~.." ~ (~~~~'-1it"':~;:"<OP'. '-~-'--';;;';O::-;7.."--~c=,.-~t;:~A^l ~, \ ~ /70'0' -.-/,^~y t ~ . ~ \ I! l~..".I,I. 11" ~ r' !)' \ L f"\ -P .t"'" . ~,,'1. \.". \ ;\ , ~:Y~"\) = v, / U It,'; '\<~"; ~.,- '.,~ -,G/r~. . ') f." 0/ -""> r ".~ - .~.,ft \ .~~.~ r,i " ~""~~';' .~'~ , 'j "-~.:,IJl' ;.l"'::.J l)~lr\ ..:. \.. 1 \" ' (:;,; t" .. V~ ~ '::\ ,'= - f";'~ ~ \'1 \ L I:; , \\'1 I., " r<. ".J\ '". I I \ ,; ';:~..J (\ 1 .~ I,'" . '.J'r.(~'lrt"/">J:"-'I- j-?f /"",,' I ':1.; "'- '\, '. d ~r<".:..,,"~..~,",!.:'. u :.._,-::..~'-":'::':L_': ___ p ?,~...:..~~_~__..,,_.",.::~~,.:-),) '\1 ?:~ """"/'1 .. '....- /. <, .n' t'.....~ t ."C' ", i ; H' r..), ;;>7-' ../-, J, ,:(. f..:/. -" 1".' I l":'; \\\a 'I "",,,.__ '~'II I 7.),['[ DE/7/{'>;iFE,l) } \ ,: ,~~/(, __ __.__._______..' ----'-~"'~..\-"::'-. 'ji,...-...__.,. ~"". } /l.-' 7;<1/,"- t'/,Fy' t'.?/'-;-"" ~. ,. , ' (} ,--', I)i~/\~j.i .t. () 7=~ _C.] \ ~~ J ~-J """ \ !: ~'/ir\ .." t ~l' " ll~ ) t ? "7 /?n '"\ .If- ::: -yi. I \,~J ~ 1-.fJ ~ ,1'1/ /, Vf,.'I/ ,) ./. -- .) , h~t \.l" .. \1 1 \:I~' ~,l, J _.._, /i ^_ . /."'/~,<i' "'V" ' I j ~ ~'...... \'f) \ ~ '''::--,r'' ~..,.. .' ~ '.,,'" '.J .(.. -e.. "," r', . " " \', . ,,- -- --~f~~s:~;Ei;=--,-"-,--,-,~~,,,~~~'~'-~-"'~'-':;j01~; ~~\ g ~~\ I P~('"'< I II' "< ~'" ~ 1\\~~~~ A;;'0"Sii;:irT/:~<"~1\ ~ ~:~~ ~ \. \ AS}'"' I ~:\ / . /'i/!' .," ' ' ! '5 TE"V E N "5.._ GR'c'8'K BOUCEVAR.D 'J ..;:.( ,-_.__.~----- (,") PIZOPO.7~D /..01 r.../ N e AJ>Jr.../ $1'l\"'J/:;,N'T ,. \ _..-.==:t____..,,~-~ I T- ex.l;) l' I N~ PRoP. l-INo 1:=c,,,~,:"L=i:O- =~" ,I "