CVS, LLC - Stormwater BMP Operation and Maintenance AgreementRECORDING REQUESTED BY:
CITY OF GILROY
WHEN RECORDED MAIL DOCUMENT TO:
CITY OF GILROY
CITY CLERK
7351 ROSANNA ST
GILROY, CA 95020
RECORD AT NO FEE
PER GOVERNMENT CODE SECTION 61
AP N`. 808-12-013,808-12-014,
808 -12 -015, 808 -12 -016
DOCUMENT: 23417346 IIIII�IIIIIII � Pages: °`. °' AMT PAID
REGINA ALCOMENDRAS
SANTA CLARA COUNTY RECORDER
Recorded at the request of
City
RDE t# 002
8/30/2016
2 :40 PM
SPACE ABOVE THIS LINE FOR RECORDER'S USE
STORM.WATER BMP
OPERATION AND MAINTENANCE AGREEMENT
THIS STORMWATER BMP OPERATION AND MAINTENANCE AGREEMENT ( "AGREEMENT ") is made
and entered into this 1st day of August , 2016 by and between the City of
Gilroy ( "CITY ") and Garfield Beach CVS, L.L.C. ( "DEVELOPER ").
RECITALS:
This AGREEMENT is made and entered into with reference to the following facts:
A. The CITY is authorized and required to regulate and control the disposition of storm and surface
waters as set forth in the CITY's National Pollutant Discharge Elimination System permit.
B. The DEVELOPER is developing a certain tract or parcel of land more particularly described in
Exhibit "A" attached hereto (the "PROPERTY ").
C. The DEVELOPER desires to construct certain improvements of the kind or nature described in
the Post Construction Storm Water Pollution Prevention Ordinance, Gilroy City Code Chapter 27D (the
"ORDINANCE ") on the PROPERTY that may alter existing stormwater conditions on both the
PROPERTY and adjacent lands.
D. To minimize adverse impacts due to these anticipated changes in existing storm and surface .
water flow conditions, the DEVELOPER is required by the CITY to implement Best Management
Practices ( "BMPs ") and to build and maintain, at DEVELOPER's expense, stormwater management
facilities ( "FACILITIES "), more particularly described and shown in the Stormwater Runoff Management
Plan prepared for CVS Pharmacy by Tait & Associates, Inc. dated August 1 2016, which plans and any
amendments thereto, are on file with the Public Works Department of the City of Gilroy, California, and
are hereby incorporated by reference.
E. The CITY has reviewed and approved the Stormwater Runoff Management Plan subject to the
execution of this AGREEMENT.
NOW, THEREFORE, in consideration of the benefit received and to be received by the
DEVELOPER, its successors and assigns, as a result of the CITY'S approval of the Stormwater Runoff
Management Plan, the DEVELOPER, hereby covenants and agrees with the CITY as follows:
Covenants Running With the Land: Property Subiect to Agreement: All of the real property
described in Exhibit "A" shall be subject to this AGREEMENT. It is intended and determined that
4848- 8399 -0806v2
MVAKHARIAT4706091
-1-
,:
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"
( "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 DEVELOPER subject to this
AGREEMENT against any other owner, tenant or occupant of the said property, or any portion
thereof.
2. Responsibility for Installation. Operation and Maintenance: At its sole expense, the
DEVELOPER, its successors and assigns, shall construct, operate and perpetually maintain the
FACILITIES in strict accordance with the Stormwater Runoff Management. Plan and any
amendments thereto that have been approved by the CITY and /or the ORDINANCE.
Facility Modifications: At its sole expense, the DEVELOPER, its successors and 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. DEVELOPER agrees that it shall not modify BMPs
and shall not allow BMP maintenance activities to alter the designed function of the FACILITIES
from its original design unless approved by the CITY prior to the commencement of the proposed
modification or maintenance activity.
4. Facility Inspections by the CITY: At reasonable times and in a reasonable manner as provided in
the ORDINANCE, 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 Runoff Management Plan and any
amendments thereto approved by the City.
5. Failure to Perform Required Facility Repairs or Modifications: If the DEVELOPER fails to
implement the BMPs, maintain the facilities or correct any defects in the FACILITIES in
accordance with the approved design standards and /or the Stormwater Runoff Management Plan
and in accordance with the law and applicable regulations of the ORDINANCE, the authorized
enforcement officer, described in Gilroy City Code 27D.2, can give a thirty (30) day written notice
to correct the violation. If the DEVELOPER fails to correct the violations within the thirty (30)
days as specified in the notice of violation, the CITY shall have the right to enter the PROPERTY
to abate the nuisance and then recover costs from DEVELOPER pursuant to Gilroy City Code
27D.17.
In the event that maintenance or repair is neglected, or the FACILITIES become an immediate
danger to public health or safety, the City shall have the authority to perform maintenance and /or
repair work with. twenty -four (24) hours written notice to DEVELOPER. Whenever the CITY
completes remedial work or maintenance, the CITY will collect reimbursement for the costs of the
work from the DEVELOPER, pursuant to Gilroy City Code 27D.18. The City is under no
obligation to maintain or repair the BMP, and this Agreement may not be construed to impose any
such obligation on the City.
Additionally, conditions from failure to implement the BMPs or to maintain or repair the
FACILITIES shall be deemed a public nuisance subject to all procedures, abatement of such
conditions and remedies as provided in Chapter 27D of the Gilroy City Code. In addition, the
CITY may pursue such other remedies as provided by law, including, but not limited to, such civil
and criminal remedies set forth in the ORDINANCE.
6. Indemnity: The DEVELOPER, 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
4848- 8399 -0806v2 -2-
MVAKHARIA104106091
for personal injury and property damage, including without limitation reasonable attorneys' fees or
costs and court costs, arising out of or related to the DEVELOPER'S, its successors' and /or
assigns' construction, operation or maintenance of the BMP FACILITIES except claims, liabilities,
actions, causes of action, and damages that arise out of the CITY's sole negligence or willful
misconduct or the sole negligence or willful misconduct of any of the CITY'S employees, agents,
representatives, contractors, vendors, or consultants.
7. Obligations and Responsibilities of DEVELOPER: Initially, the DEVELOPER 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 DEVELOPER 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.
8. Property Transfer: Nothing herein shall be construed to prohibit a transfer by the DEVELOPER to
subsequent owners and assigns.
9. Attorneys' Fees: In the event that any party institutes legal action against the other to interpret or
enforce this AGREEMENT, or to obtain damages for any alleged breach hereof, the prevailing
party in such action shall be entitled to reasonable attorneys' fees in addition to all other
recoverable costs, expenses and damages.
10. 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.
11. 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 expresses herein.
12. 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.
13. 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.
14. 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.
4848 - 8399 -0806v2 _3_
MVAKHARIA104706091
lb
15. Termination: 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 DEVELOPER, its
successors and /or assigns, the CITY shall execute a release of this AGREEMENT which the
DEVELOPER, it successors and /or assigns, shall record in the Clerk's Office, at its /their expense.
16. Successors and Assigns: The covenants of the DEVELOPER set forth in numbered Sections 1
through 15 above shall run with the land, and the burdens thereof shall be binding upon each and
every part of the property and upon the DEVELOPER, its successors and assigns in ownership
(or any interest therein), for the benefit of Wren Avenue where public storm main is connected
and its storm drains and each and every part thereof and said covenants shall inure to the benefit
of and be enforceable by the City, its successors and assigns in ownership of each and every
part of the Street and storm drains.
Executed the day and year first above written.
Garfield Beach CVS, L.L.C.
� F
By:
Name: Cheryl A Breen
Assistant Secretary
Title:
(Notary acknowledgment to be attached)
Cl,
By
Name: Rick Smelser
Title: Public Works Director /City Engineer
4848- 8399 -0806, v.2
4848- 8399 -0806v2 -4_
MVAKHARIA104706091
STATE OF RHODE ISLAND
COUNTY OF PROVIDENCE
In Woonsocket, on the 1' day of August, 2016, before me personally appeared Cheryl A.
Green, Assistant Secretary of Garfield Beach CVS, L.L.C., a California limited liability company, to
me known and known by me to be the party executing the foregoing instrument, and she
acknowledged said instrument, by her executed, to be her free act and deed in such capacity and the
free act and deed of Longs Drug Stores California, L.L.C. ,-� k a %
VI-1
)20
CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California
County of S Q rl fa r a
9 .
On��T201b before me, ;CtrldrC� E . niGl\G . N)f+- W wb )t G
Date Here Insert Name and Title of the Officerl
personally appeared 1( K Sn'121 S P C
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person whose name(A is /ar6
subscribed to the within instrument and acknowledged to me that he /5W/tW executed the same in
his /ter /,Wr authorized capacityKs), and that by his/W /tWr signatureXon the instrument the person(s);
or the entity upon behalf of which the person acted, executed the instrument.
SANDRA f. NAVA
Commission # 2066119 =
i Notary Public - California
Santa Clara County
Comm. 1= 11 2018
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.
Signature GrLGZ�-
Signature of Notary Public
Place Notary Seal Above
OPTIONAL
Though this section is optional, completing this information can deter alteration of the document or
fraudulent reattachment of this form to an unintended document.
Description of Attached Document Q MQ; \4- enance Agra0men i-
Title or Type of Document: 5'rc rm W4 +er 6M P O per o n Document Date: A 14 T r+
Number of Pages: Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
EXHIBIT "A"
ALL THE LANDS SHOWN ON THAT CERTAIN PARCEL MAP ENTITLED "PARCEL MAP IN THE CITY
OF GILROY OF THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA DIVISION OF PARCELS
1,2 & 3 BOOK 451 OF MAPS PAGE 40" AS FILED ON NOVEMBER 6, 1981 IN BOOK 492 OF MAPS AT
PAGES '8 AND 9 IN THE RECORDER'S OFFICE OF SANTA CLARA COUNTY, LYING WITHIN THE
CITY OF GILROY, IN THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE WEST LINE OF THE LANDS DEPICTED ON SAID PARCEL MAP,
SAID POINT LYING 268.50 FEET SOUTHERLY ALONG SAID WEST LINE FROM THE NORTHWEST
CORNER OF SAID LANDS; THENCE LEAVING SAID WEST LINE ALONG THE FOLLOWING FOUR (4)
COURSES:
1. SOUTH 89° 12' 00" EAST, A DISTANCE OF 39.50 FEET;
2. NORTH 000 48'00" EAST, A DISTANCE OF 15.50 FEET;
3. SOUTH 890 11' 04" EAST, A DISTANCE OF 184.30 FEET;
4. SOUTH 890 14' 40" EAST, A DISTANCE OF 63.95 FEET TO A POINT ON THE EAST LINE OF SAID
LANDS, SAID EAST LINE ALSO BEING THE WEST RIGHT -OF -WAY OF WREN AVENUE, SAID POINT
ALSO BEING THE BEGINNING OF A NON - TANGENT CURVE TO THE NORTH WHOSE RADIUS
BEARS SOUTH 890 12' 35' WEST A DISTANCE OF 900 FEET; THENCE ALONG SAID RIGHT OF WAY
AND SAID CURVE THROUGH A CENTRAL ANGLE OF 050 12'17" AN ARC DISTANCE OF 85.06
FEET; THENCE NORTH 06° 12'17" WEST, A DISTANCE OF 123.76 FEET TO THE BEGINNING OF A
TANGENT CURVE CONCAVE TO THE SOUTHWEST HAVING A RADIUS OF 40.00 FEET; THENCE
ALONG SAID CURVE, LEAVING SAID RIGHT -OF -WAY THROUGH A CENTRAL ANGLE OF 800 24,3314
AN ARC DISTANCE OF 56.14 FEET TO THE NORTH LINE OF SAID LANDS AND THE SOUTH RIGHT -
OF -WAY OF FIRST STREET BEING ALSO STATE ROUTE 152; THENCE ALONG SAID RIGHT -OF-
WAY NORTH 86° 37'07" WEST A DISTANCE OF 228.62 FEET TO THE AFOREMENTIONED
NORTHWEST CORNER OF SAID LANDS; THENCE LEAVING SAID RIGHT -OF -WAY ALONG THE
AFOREMENTIONED WEST LINE OF SAID LANDS SOUTH 00" 48'00" WEST, A DISTANCE OF 268.50
FEET TO THE POINT OF BEGINNING AND THE END OF THE DESCRIPTION HEREIN.
SAID PORTION OF LAND CONTAINS 68626 SQUARE FEET, MORE OR LESS.
a— to— ecv
DATE
DUSTIN BYRON WILTON
PLS 8080
LICENSE EXPIRES 12131/2017
e LAND
y��aeV ROIy �``'�
O L
V 8080 J
@....i±r