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CC Resolution No. 07-207RESOLUTION NO. 07-207 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING EXECUTION OF A MAINTENANCE AGREEMENT WITH BAY COLONY INVESTORS II, INC., OAK PARK VILLAGE, 10745 N. DE ANZA BOULEVARD, APN 326-10-064 WHEREAS, there has been presented to the City Council a proposed maintenance agreement between the City of Cupertino and Bay Colony Investors II, Inc., Oak Park Village, 10745 N. De Anza Boulevard, 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 18th day of December 2007, by the following vote: Vote Members of the City Council AYES: Sandoval, Mahoney, Wang, Wong NOES: None ABSENT: None ABSTAIN: None ATTEST: APPROVED: City Clerk Mayor, City of Cupertino RECORDED AT THE REQUEST OF ) And ) WHEN RECORDED RETURN TO: ) SPACE ABOVE FOR RECORDER'S USE ONLY MAINTENANCE AGREEMENT IS MAN NANCE AGREEMENT ("Agreement") is made and entered into this 3rd day of ar. ~by Bay Colony Investors II, Inc. (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. Oak Park Terrace Homeowners Association is the successor-in-interest to Declarant, the developer of the real property and improvements that comprise the Oak Park project that is located within the City of Cupertino, County of Santa Clara, State of California ("Project"). 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 City of Cupertino of the related improvements, including landscaping, that is situated on real property owned by City along 10745 North De Anza Blvd. in front of the Project, and to establish certain criteria and procedures for the accomplishment of said maintenance, repair and replacement. NOW, THEREFORE the parties hereto agree as follows: 1. Covenants Running With the Land• Pr~erty 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 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: Oak Park Terrace Homeowners Association shall, at its sole cost and expense, maintain, repair, replace, and keep in good condition all improvements and landscaping located on the portion of the City's property that abuts and fronts the Project along 10745 North De Anza Blvd., excepting there from the public sidewalk abutting the property line of the Project which shall remain the maintenance responsibility of the City. Exhibit "A" 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 project in a good, useable condition under all weather conditions. Said 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 Owners by Declarant. 4. Decisions Regarding Performance of this Agreement: All decisions regarding the need for maintenance, the implementation thereof, and any particular other matters of the Project shall be determined by mutual agreement between the City and Declarant., 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 maintenance 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. Arbitration: In the event that any dispute or controversy arises between Declarant and City with respect to this Agreement, the same shall, at the election of any party, be submitted to arbitration to and in accordance with the rules of the American Arbitration Association and shall be conducted at its office nearest to the Project. The cost of the arbitration and reasonable travel cost shall be borne by the parties in such proportion as the arbitrator shall decide. 7. 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. 8. 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. 9. 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. 10. 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 11. 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. 12. Recordation: It is anticipated that this Agreement shall be excuted and acknowledged in proper recordable form and shall be recorded immediately. 13. 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. Ba Colon Investors II Inc. ~ a Californi tion ,- f By: ~ _ Name: INS Title: ~~~ ~ CITY QECUPERTINO By: Title: 3 Exhibit A CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT A State of California County of ~C(~'1 ~ ~~~ On /4~y1'~+i~~d S 1007 before me, Date personally appeared ROMEO N. CASTRO d ~M-• No.1662328 N07AflV PU81.IC • CALIFORNIA ° SANTA CLARA COUNTY MY Cortxn. Expliret AprN 30, 2010 Name(s) of Signer(s) personally known to me ss. /-j Oma~7 ~v ~ C ci ,S ~D Name and/}tle.of ORicer (e.g., "Jane Doe, Notary Public") ~C1'? ~ . 0'''~ yr ~'7 ^ 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/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WI ~ S m~%y/~h-amend and ci I. Place Notary Seal Above / ~L~~r~ Signature of Notary Public 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: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ^ Individual ^ Corporate Officer -Title(s): ^ Partner - ^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: Signer Is Representing: Top of thumb here ,~-; Number of Pages: Signer's Name: ^ Individual ^ Corporate Officer -Title(s): __ _ ^ Partner - ^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: Signer Is Representing lop of thumb here -~ ae»~ ©2004 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 Item No. 5907 Reorder: Call Toll-Free 1-800-876-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT 4~' ~~'~<'~S; ~'~'~~.ercY~.cec~.c:F.c~r<ct'.~S?~ ecY~.ce>cr~~~.c~.c.~.c>t~.cc>.ct>,cr~.re~'~-- State of California County of S a rrk a C1ai_rc~. On Date before me, -Ktv~n Mclrte~rn~~ J'Jo`~c~-~.~ }~u~O~r~- , Here Insert Name and Title of the Officer personally appeared~av ~ d- Krta>aP Name(s) of Signer(s) KIM MARIE SMITH Corrxniasfon # 1615489 Nolary Pubwc - CdHornia SarMa Clara county My t_omm. Nov 1. who proved to me on the basis of satisfactory evidence to be the person(s'J whose name($fi is/are subscribed to the within instrument and acknowledged to me that he/skae!#+~ey executed the same in his/berftHeir authorized capacity(ies), and that by his/her><#Fieir signature(s) on the instrument the person(~j, or the entity upon behalf of which the person(srJ acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal Above Signature 9~c--rx-1'n~.c-~ Signature of Notary Public 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: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ^ Individual ^ Corporate Officer-Title(s): ^ Partner - ^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator .Other: Cr,'~y 1"~G~n~Q~-~ Signer Is Representing: Number of Pages: Signer's Name: ^ Individual ^ Corporate Officer -Title(s): ^ Partner - Ci Limited ^ General • C Attorney in Fact • Top of thurT~b hears ~ TfUStee Top of thumb hb're U Guardian or Conservator ^ Other: Signer Is Representing: ©2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1-800-876-6827