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Saratoga Inn Attachment
RECORDING REQUESTED By: CITY OF SARATOGA AFTER RECORDA nON RETURN To: CITI' OF SARATOGA Attn: City Clerk 13777 Fruitvale Avenue Saratoga, CA 95070 THIS SPACE FOR RF;CORDER'S USE STORM DRAIN EASEMENT AGREEMENT THIS AGREEMENT is entered into by and among the Inn at Saratoga, Inc., a California Corporation (hereinafter referred to as "Owner") and the City of Saratoga (hereinafter referred to as "City") with reference to property located in the City of Saratoga, County of Santa Clara, State of California known as Assessor's Parcel Number: 503-24-046 as described in more detail in Exhibit A hereto (the "Properiy"). RECITALS A. Inn is the owner of record of the Property. B. City holds a right of way and easement for storm drainage purposes as described in the Grant Deed dated July 2, 1974 and recorded on July 3, 1974 as Document Number 4801876 in the Official Records of Santa Clara County in favor of the City (the "Easement"). City currently owns and maintains an approximately 18-inch diameter subterranean stonn drain pipeline (the "Storm Drain") within the Easement The Storm Drain is described in more detail in Exhibit B hereto. C. Owner has obtained regulatory approvals to construct an addition to an existing structure on the Property (the "Improvements") that would cover the Stonn Drain and the land subject to the Easement and substantially interfere with City's exercise of its rights under the Easement. The Improvements are described in MOD 09-0003 on file with the Community Development Department of the City of Saratoga. This Agreement establishes the conditions under which Owner may proceed with the Improvements notwithstanding their interference with the Storm Drain and Easement. D. This Agreement is solely intended for the protection and well-being of the City's existing stornl drain system within the Easement. This Agreement is in no way associated with or in reference to other easements not owned by the City that may be atTected by the Improvements or Owner's related facilities. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises contained herein, the parties agree as follows: 1. [nn's Right to Develop Improvements. City hereby grants to Owner the right to proceed with construction, operation, and maintenance of the Improvements subject to the conditions herein. 2. Maintenance and Repair of Stom1 Drain. Owner shall take all steps to maintain, repair, reconstruct, and replace (when reasonably necessary at the City's sole discretion), those storm drain facilities ofthe City, including, but not limited to, the 18 inch diameter reinforced concrete storm drain. Such maintenance and repair obligation shall include the obligation to maintain, repair, reconstruct, and replace (when reasonably necessary at the City's sole discretion) any appurtenances within or immediately adjacent to the Storm Drain. All such work shall be performed and warranted to City standards, as determined by City's Public Works DIrector or his/her designee. 3. Annual Inspection of Storm Drain. At least once per year, Owner shall calise the entire portion of the Storm Drain within the Property to be visually inspected by video. Within thirty (30) days following said arillual inspection, Inn shall provide a report to the City's Public Works Director, or his designee regarding the condition of the storm drain and associated facilities including, but not limited to whether the inspection indicates that either routine or nonroutine maintenance or repair work should be performed and which also identifies routine or non-routine maintenance or repair work which has been performed during the preceding year. 4. City's Right to Perform Maintenance and Repair Work. If Owner does not timely perform its obligations under Paragraphs 2 and 3 of this Agreement after its receipt of written notice from City and a reasonable opportunity to cure its default, then City shall have the right to enter onto the Property and perform such work at Owner's expense. In addition, at any time that City determines that an emergency condition exists, City reserves the right to enter onto the Property without notice to Owner to perform such work as City may determine is necessary to protect the public health and safety or to preserve its facilities. In either such event, City shall take steps reasonably necessary to minimize damage to the Property; however, Owner is responsible for any damage to the Property that may occur notwithstanding such efforts. 5. Indemnification. Owner shall defend, indemnify and hold harmless City and its elected and appointed boards, of1icers, agents and employees from and against any and all claims, liabilities, and losses of any nature whatsoever, including reasonable attorneys' fees and costs, for damage to property or persons, including death, arising out of or in any way connected with: (a) The use, maintenance, reconstruction, replacement or operation of the I rnprovernen Is; (b) The discharge of any type of pollutant from the Property to the City's storm drain facilities; and 2 (c) Any failure or collapse of or damage to the City's storm drain facilities over which the Improvements are located. In the event of any such failure, collapse or damage, Owner, in addition to defending, indemnifying and holding the City harmless, shall also reimburse the City for all its costs, direct and indirect, to reconstruct said storm drain facilities. The aforesaid indemnity obligation shall apply regardless ofthe fault or negligence of the indemnitor or indenmitees, excepting only that said indemnity obligation shall not apply if the claim, liability, or loss arises out of the sole, active negligence of the City. 6. Successors and Assigns; Limitation on Inn's Rights and Obligations. This Agreement and the covenants made herein shall inure to the benefit of and be binding on the successors, assigns, heirs and legal representatives (collectively, the "Successors") of the parties hereto. Neither Owner nor any Successor of Owner shall assign or transfer its interest in the Property to any person or entity that does not have the financial capability of performing Owner's obligations hereunder. Owner shall notify City of any such transfer or assignment within thirty (30) days of said transfer or assignment. Any Successor of Owner shall execute a written acknowledgement consenting to the ternlS, conditions and obligations of this Agreement. 7. Covenants to Run,. The parties hereby covenant and agree that this Agreement shall run with the land and be binding upon themselves, their successors, assigns, heirs and legal rcpresentatives and shall continue in effect for so long as the Improvements remain located on or in the vicinity of the City's storm drain facilities. The burden of the covenants herein shall be on the responsible party's interest in the Property, and the henefits shall run in favor of the City. This Agreement shall be recorded against the Property in the records of the Recorder of Santa Clara County. 8. No Effect on Obligations. Nothing in this Agrecment is intended to transfer to the City or otherwise release Owner or its respective successors and assigns from any liability which any of them may now or in thc future have under federal, state or local laws or regulations relating to the discharge or release of any type of pollutant from or onto the Property, whether or not such discharge or release is in compliance with any City requirement. 9. Attorneys' Fees. In the event that any action or proceeding is brought arising out of or in connection with this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees incurred both at trial and on appeal, including any necessary costs, expenses and expert fees. 10. Termination. This Agreement may be terminated only by City and only upon a material breach of this Agreement by Owner or a Successor of Owner and the failure by Owner or its Successor to cure said breach within a reasonable time after receipt of written notice from City that states the nature of the breach and the action required to be taken to cure said breach. II. Effective Date, Entire Agreement; Modifications in Writing. This Agreement shall become effective upon the date a duly executed and acknowledged original of this Agreement is recorded in the Official Records of the Recorder of Santa Clara County.This 3 Agreement constitutes the entire understanding and agreement of the parties with respect to the subject matter set forth herein and supersedes all previous negotiations, discussions and agreements between the parties with respect to all or part of the subject matter hereof. This Agreement may be terminated or modified only by a written agreement executed by the parties hereto, or by their respective successors in interest. 12. Authority to Execute. Each of the signatories hereto warrants and represents that he or she has the authority to sign this agreement and to bind any party on whose behalf SaId signature is made and/or to bind any property with respect to which said signature is made. EXECUTED in the County of Santa Clara, State of California, as of the day and year first above written. Dated: _,_J",-"",lvL"'-=+-l--LCf-+. -=.2.=:...><t.I:--,O..L7 __ ATTEST: By: -Dated: I __ Exhibits Exhibit A Property Description Exhibit B -Stonn Drain Description CITY OF SARATOGA, a municipal corporation, APPROVED AS TO FORM -, <::. City Attorney The Inn at Saratoga, a California corporation P:\SARA TOGA\('ontracts\lnn Encroachment Easc;mcnt (Draft 06-02-09),doc 4 EXHIBIT A Ail Lhal certain real property situated in the Counly of Santa Clara, State of California, df:5cribed as follows (City of Saratoga) PARCEL ONE Parn:; "A" as shown on that Parcel Map filed for record in the office of the Recorder of the County or Santa Clara, State of California, on September 12, 1984, in Book 5 of Maps, Pages 46 and 47. PARCEL TWO An easement to use the airspace over' ten (10) feet or more above the finish grade for pedestrian access by aerial walkways, and as granted in the Deed to Samuel L Tyler, et ai, recol'ded January 14, 1974, ill Book 0723, Page 590, Official Recorels. Assessol"s Parcel Number 503-24-046 EXHIBITB All easemellt for the purposes shown below and rights incidental thereto as shown or as offered for dedication on tile recorded map shown below. Map: Recorded Easement purpose: Affects: Easement purpose: Affects: Easement purpose: Affects: Parcel Hap September 12, 1984, Book 533 of Page 46 an·j47 Storm dram A strip of land 10 feet in exact location to be determined, as per map Flood COlltrol and/or slOrm drain The westerly portion, as more fully described on said map Encroachments As more fully described on sad map ·, i",' . , 1 I I I I ! i I ,I 1 " " ,t " , '"• • .... •• " • \ I III III 1-1,> ' .... ! 2 I : ,f • 'I". :.<. • C> CALIFORNIA ALL.PURF'OSE ACKNOWLEDGMENT State of California County of CJ CU-U-} On le (2-8 \ iYt Date beforE' me, personally appeared ___ -It_ 6 Place Notary Sea! Above 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/she/they executed the same in his/her/their authorized capacity(ies), and that by hiS/herltheir 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. WITNESS seaL Signature ()'J'-1 Signaturo of Notary Publlo OPTIONAL------------------------Though the information be/ow is not 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 DocumEmt TItle or Type of Document: ______ . Document Date: _________ . Number 01 Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer{s) Signer's Name: ___________ _ [l Individual LJ Corporate Officer -Tltle(s): C Partner -0 Limited U General C Attorney in Fact o Trustee o Guardian or Conservator U Other: -------Signer Is Representing: ___ _ IGHTTHUMBPRINT OF SIGNER Top of UlUr!lb here Signer's Name: ___ ..... .. ... ____. . ___ _ o Individual [J Corporate Officer -Title(s): ________ _ o Partner -0 Limited 0 General n Atlorney in Fact o Trustee LJ Guardian or Conservator o Other: _________ _ Signer Is Representing: ____ _ ©2007 National Notary Assooation' 9350 De Solo A.ve PO Box 2402· CA 91313-2402· \VWW,NaMnaINolary.org Item #5907 Reol"(ler Call Toll-Free 1 "SQO.B76-6827