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13-055 Maintenance Agreement for Stormwater Management Facilities Operation, 10101 North Wolf Rd Sears Roebuck APN 316-20-081 and 316-20-082 DOCUMENT: 22132169 Pages 10
Fees. . . . + No Fees
RECORDING REQUESTED BY: HI I Taxees.
City of Cupertino AMT PA I D
WHEN RECORDED, MAIL TO: REG I NA ALCOMENDRAS RDE # 009
SANTA CLARA COUNTY RECORDER 3/13/2013
Recorded at the request of 3 22 PM
City Clerk's Office C i y
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014-3255
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
NO FEE IN ACCORDANCE
WITH GOV. CODE 27383
STORMWATER MANAGEMENT FACILITIES
OPERATION AND MAINTENANCE AGREEMENT
APN's 316-20-080, 316-20-081 & 316-20-82
10101 North Wolfe Road, Cupertino, CA 95014
Sears, Roebuck and Co., a New York corporation
pit Original
El For Fast Endorsement
-NO FEE"
City of Cupertino
CERTIFICATE OF ACCEPTANCE is hereby given in order to comply with the
provisions of Section 27383 of the Government Code.
This is to certify that the maintenance agreement with
10101 North Wolfe Road, Cupertino, CA 95014
and the City of Cupertino, a governmental agency is hereby accepted by the Public
Works Director, and the grantee consents to recordation thereof by its duly authorized
officer.
Dated:March 13, 2013
By:
Kirsten Squarcia
Deputy City Clerk
City of Cupertino
RECORDED AT THE REQUEST OF )
and )
WHEN RECORDED RETURN TO: )
SPACE ABOVE FOR RECORDER'S USE ONLY
STORMWATER MANAGEMENT FACILITIES
OPERATION AND MAINTENANCE AGREEMENT
APN's 316-20-080,316-20-081 & 316-20-082
10101 North Wolfe Road,Cupertino, CA 95014
THIS STORMWATER MANAGEMENT FACILITIES OPERATION AND
MAINTENANCE Agreement (the "Agreement") is made and entered into this ' — day of
, 2013, by Sears, Roebuck and Co., a New York corporation (hereinafter
referred to as"Covenantor") and the City of Cupertino(the "City").
RECITALS:
This Agreement is made and entered into with reference to the following facts:
WHEREAS, 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");
WHEREAS, the Covenantor is the owner of a certain tract or parcel of land more
particularly described in Exhibit A attached hereto(the"Property");
WHEREAS, Covenantor entered into a lease (the "Lease") for a portion of its building
located on the Property;
WHEREAS, in connection with improvements associated with the Lease, stormwater
conditions on the Property have been altered to incorporate drainage improvements to the
Property;
WHEREAS, in order 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 BKF
Engineers and dated May 23, 2012, which plans and any amendments thereto (collectively, the
"Stormwater Management Plan"), are on file with the Public Works Department of the City of
Cupertino, California, and are hereby incorporated by reference;
DM LI B-#394348-v8-Cupertino CA (Stormwater Fad lity Operation_and Management_Agreement)
WHEREAS, Covenantor acknowledges and agrees that the Facilities qualify as an off-
site improvement to the Property required by the City and Covenantor shall construct at
Covenantor's sole cost and expense, the Facilities in accordance with the Stormwater
Management Plan; and
WHEREAS, 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 Property
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 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: At their sole cost and expense, Covenantor , its
successors and/or assigns, shall construct 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. Operation and Maintenance: At their sole expense, the Covenantor, its successors and/or
assigns, shall 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.
4. Facility Modifications: At their sole expense, the Covenantor, its successors and/or
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.
5. 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 Ordinance, the Stormwater Management Plan and any amendments thereto
approved by the City.
6. 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
DMLIB-#394348-v8-Cupertino CA(Stormwater_Facility_Operation_and_Management_Agreement) 2
with the approved design standards and/or the Stormwater Management Plan and in accordance
with the law and applicable regulations of the Ordinance within the time specified in a written
notice from the City, the City shall have the right, under the Stormwater Management Easement
Agreement for the subject property, to enter the Property to perform remedial work, for which the
City will collect reimbursement for such work from Covenantor. In addition, the City may pursue
other such remedies as provided by law, including, but not limited to, such civil and criminal
remedies set forth in Sections 9.18.190, 9.18.230 and 9.18.250 of the Ordinance.
7. 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 and/or
intentional acts of any of the City's employees, agents, representatives, contractors, vendors, or
consultants.
8. 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.
9. Property Transfer: Nothing herein shall be construed to prohibit a transfer by the
Covenantor to subsequent owners and assigns.
10. 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.
11. 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.
DMLIB-#394348-v8-Cupertino_CA (Stormwater_Facility_Operationand_Management Agreement) 3
12. 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 expressed herein.
13. 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.
14. 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.
15. 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.
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 expense.
[Remainder of Page Intentionally Left Blank; Signatures Appear on the Following Page]
DMLIB-#394348-v8-Cupertino_CA(Stormwater_Facility_Operation_and_Management_Agreement) 4
Executed the day and year first above written.
SEARS, ROEBUCK • ) CO., a New York CITY OF CUPERTINO
corporation
I le
B I. �' B �-_
Y: By:
Name: �� Ian F. aw Name: 77,--t
Title: uthorized Representative Title: "stn G{-a-/- � �(0(cL
DMLIB-#394348-v8-Cupertino CA(Stormwater_Facility_Operation and Management_Agreement) 5
STATE OF ILLINOIS )
)SS
COUNTY OF COOK )
The foregoing was acknowledged before me this j day of 11
2013 by NC‘. L t YL�� ! 1`; r t f ''(i,t,<, ,1,:10. . of Sears, Roebuck and Co., a
New York corporation.
`{YP�Y�t
AL, ?n s'<-, ', GWEN A. SANDSTROM
„_AIIh ��c JJ C—__ 1,[; .'� OFFICIAL SEAL
otary Public ti%` T Notary Public,State of Illinois J My Commission Expires
' Bois` July 26,2015
My Commission Expires: 7- �2C,1
STATE OF CALIFORNIA )
)SS
COUNTY OF SANTA CLARA )
The foregoing was acknowledged before me this /2 Tic( day of MI-4-&/-1
2013 by 7'4.) M Q o 4e-.7 _ of the City of Cupertino,
California.
KIRSTEN RENEE SODA CIA
Commission#t 1906898
Notary Public-California I
Notary Public Santa Clara County
My Comm. Expires Oct 4,2014
My Commission Expires: (9cr ' 2°/S�_
DMLIB-#394348-v8-Cupertino_CA (Stormwater Facility_Operation and_Management Agreement) 6
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§1189
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State of California
County of .SA frI f a am_ ✓,
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Name(s)of Signer(s)
who proved to me on the basis of satisfactory
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fi to me that Oa he/they executed the same in
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0•:.,. KIRSTEN RENEE SOUARCIA I certify under PENALTY OF PERJURY under the kg
�- Commission 0 1906898 laws of the State of California that the foregoing
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∎. 44, Santa Clara County paragraph s true and correct.
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Place Notary Seal Above Signature of Notary Public
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Description of Attached Document ?
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fi ❑ Attorney in Fact Cl Attorney in Fact x
fi ❑• Trustee Cl Trustee
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©2010 National Notary Association•NationalNotary.org•1-800-US NOTARY(1-800-876-6827) Item#5907
EXHIBIT A
All that real property, situated in the City of Cupertino, County of Santa Clara, State of
California, and described as follows:
A PORTION OF THE QUITO RANCHO,AND BEING A PORTION OF THE 39.39 ACRE TRACT OF
LAND DESCRIBED IN THE DEED TO VALL.CO PARK., LTD., RECORDED OCTOBER 19, 1967 IN
BOOK 7898 OFFICIAL RECORDS, PAGE 248,SANTA CLARA COUNTY RECORDS,AND DESCRIBED
AS FOLLOWS:
COMMENCING AT THE INTERSECTION 0:THE MONUMENT LINE OF STEVENS CREEK
BOULEVARD, BEING 45 FEET SOUTHERLY FROM THE NORTHERLY LINE THEREOF, WITH THE
CENTER LINE OF WOLFE ROAD, 108 FEET WIDE;
THENCE NORTH 1° 5' 14" WEST,ALONG SAID CENTER LINE OF WOLFE ROAD, 106.37 FEET;
THENCE SOUTH 88° 54' 46"WEST, 54 FEET TO THE WESTERLY LINE OF WOLFE ROAD AT THE
NORTHERLY TERMINUS OF A CURVE HAVING A RADIUS OF 60 FEET,AND THE ACTUAL POINT
OF BEGINNING;
THENCE NORTH 1° 5' 14"WEST,ALONG THE WESTERLY LINE OF WOLFE ROAD,819.02 FEET;
THENCE SOUTH 88° 54' 46" WEST, 847.26 FEET TO AN EASTERLY LINE OF TRACT NO. 2086,
MAP FILED IN BOOK 112 OF MAPS, PAGE 40;
THENCE SOUTH 0°42'55" EAST,ALONG SAID EASTERLY LINE AND ITS SOUTHERLY
PROLONGATION, 869.53 FEET TO THE NORTHERLY LINE OF STEVENS CREEK BOULEVARD,
BEING 45 FEET NORTHERLY OF THE MONUMENT LINE THEREOF;
THENCE NORTH 89° 36' EAST, ALONG SAID NORTHERLY LINE,792.24 FEET;
THENCE ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 60 FEET;THROUGH
AN ANGLE OF 90° 41' 14"AN ARC DISTANCE OF 94.96 FEET TO THE ACTUAL POINT OF
BEGINNING.
APN: 316-20-080, 316-20-081 and 316-20-082
DMLIB-#394348-v8-Cupertino_CA(Stormwater Facility_Operation_and_Management_Agreement) 7
