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McCarthy Gilroy, LLC - Stormwater BMP Operation and Maintenance AgreementSTORMWATER BMP OPERATION AND MAINTENANCE AGREEMENT THIS STORMWATER B P RATION lD M NTE ANCE AGR ENT ( "AGREEMENT ") is made and entered into this day of , 20by and between the City of Gilroy ( "CITY") and McCarthy Gilroy, LLC, a ealifornia limited liability company ( "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" (Adjusted Lot 5) 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 Pepsi warehouse & Offices TI by SANDIS Civil Engineers, Surveyors, Planners and dated 09 -02 -2015 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: 1. Covenants Running With the Land; Property Subject to Agreement: All of the real property described in Exhibit "A" shall be subject to this AGREEMENT. It is intended and determined that 4848 - 8399-0806x2 _1 _ WAKHARIAT4706091 DOCUMENT: 23458987 p Pages: g Fees. No Fees RECORDING REQUESTED BY: I I I Taxes., Copies CITY OF GILROY AMT PAID _ REGINA ALCOMENDRAS WHEN RECORDED MAIL DOCUMENT TO: SANTA CLARA COUNTY RECORDER RDE # 025 Recorded at the request of 10/12/2016 8 24 CITY OF GILROY City AM CITY CLERK 7351 ROSANNA ST GILROY, CA 95020 RECORD AT NO FEE PER GOVERNMENT CODE SECTION 6103 APN: 841 -17 -106 SPACE ABOVE THIS LINE FOR RECORDER'S USE STORMWATER BMP OPERATION AND MAINTENANCE AGREEMENT THIS STORMWATER B P RATION lD M NTE ANCE AGR ENT ( "AGREEMENT ") is made and entered into this day of , 20by and between the City of Gilroy ( "CITY") and McCarthy Gilroy, LLC, a ealifornia limited liability company ( "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" (Adjusted Lot 5) 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 Pepsi warehouse & Offices TI by SANDIS Civil Engineers, Surveyors, Planners and dated 09 -02 -2015 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: 1. Covenants Running With the Land; Property Subject to Agreement: All of the real property described in Exhibit "A" shall be subject to this AGREEMENT. It is intended and determined that 4848 - 8399-0806x2 _1 _ WAKHARIAT4706091 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 asstgns, 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. 3. 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 Ina 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.16. 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.11. 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 4848-8399.08060 _2_ MVAKHARIA104706091 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 Cn Y'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 "Transfers') 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 r 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. 4848-6399-08060 _3_ MVAKKARLA104706091 15. Termination: In the event that the CITY shall determine at its sole discretion at any future time thatthe FACILITIES are no longer required, then atthewritten requestof 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), forthe benefit of Cameron Boulevard and its storm drains and each and every part thereof and said covenants shall inuretothe benefit ofand 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. McCarthy Gilroy, LLC, a California limited liability company By: The McCarthy Ranch Limited Partnership, a California limited partnership Its: Manager By: McCarthy Milpitas GP, LLC, a California limited liability company Its: General Partner L u 077 (Notary acknowledgment to be attached) Cl 95 Name: Rick Smelser Title: Public Works Director /City Engineer 4848- 8399 -0806, v.2 of rN6 i7#�vAt( A, At4opmw Rsvo ,r�OM6 qu" zt 1190 EXHIBIT A LEGAL DESCRIPTION FOR CERTIFICATE OF COMPLIANCE NO. '2 0 ls- 02 LOT LINE ADJUSTMENT ADJUSTED LOT 6 ALL THAT CERTAIN REAL PROPERTY SITUATE IN THE CITY OF GILROY, COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: ALL OF LOT 5 AS SHOWN ON THAT CERTAIN MAP ENTITLED "TRACT 9570 McCARTHY BUSINESS PARK' FILED AUGUST 30, 2006 IN BOOK,805 OF MAPS, PAGES 29 THROUGH 35, SANTA CLARA COUNTY RECORDS. TOGETHER WITH THE FOLLOWING DESCRIBED AREA: BEGINNING AT THE SOUTHWESTERLY CORNER OF LOT 4 AS SHOWN ON SAID MAP, THENCE ALONG THE NORTHEAST LINE OF CAMERON BOULEVARD NORTH 32'04'08" WEST, A DISTANCE OF 64.00 FEET; THENCE NORTH 57'55'52" EAST, A DISTANCE OF 356.49 FEET TO THE NORTHEAST LINE OF SAID LOT 4; THENCE SOUTH 3344'11" EAST, A DISTANCE OF 64:03 FEET TO THE SOUTHEAST CORNER OF SAID LOT 4; THENCE SOUTH 57'5552 WEST, A DISTANCE OF 358.35 FEET TO THE POINT OF BEGINNING. DESCRIBED PARCEL CONTAINING.AN AREA OF 3.93 ACRES, MORE OR LESS. THE PARCEL DESCRIBED HEREON IS SHOWN ON THE ATTACHED PLAT, EXHIBIT "B" ATTACHED HERETO AND MADE A PART HEREOF. ADJUSTED LOT 4 ALL THAT CERTAIN REAL PROPERTY SITUATE IN THE CITY OF GILROY, COUNTY OF SANTA CLARA, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: ALL OF LOT 4 AS SHOWN ON THAT CERTAIN MAP ENTITLED °TRACT 9570 McCARTHY BUSINESS PARK" FILED AUGUST 30, 2006 IN BOOK 805 OF MAPS, PAGES 29 THROUGH 35, SANTA CLARA COUNTY RECORDS. EXCEPTING THEREFROM THE FOLLOWING DESCRIBED AREA: BEGINNING AT THE SOUTHWESTERLY CORNER OF LOT 4 AS SHOWN ON SAID MAP, THENCE ALONG THE NORTHEAST LINE OF CAMERON BOULEVARD NORTH 32'04'08" WEST, A DISTANCE OF64.00 FEET; THENCE NORTH 57'55'52" EAST, A DISTANCE OF 356.49 FEET TO THE NORTHEAST LINE OF SAID LOT 4; THENCE PAGE 10F 2 X1 P1 2150161SURVEY \Mapping\Exhibbl215016 LLA Exh A.de= SOUTH 3344'11" EAST, A DISTANCE OF 64.03 FEET TO THE SOUTHEAST CORNER OF SAID LOT 4; THENCE SOUTH 57'55'52" WEST, A DISTANCE OF 358.35 FEET TO THE POINT OF BEGINNING. DESCRIBED PARCEL CONTAINING AN AREA OF 2.89 ACRES, MORE OR LESS. THE PARCEL DESCRIBED HEREON IS SHOWN ON THE ATTACHED PLAT, EXHIBIT "B" ATTACHED HERETO AND MADE A PART HEREOF. END OF DESCRIPTION THIS LEGAL DESCRIPTION WAS PREPARED BY ME OR UNDER MY DIRECTION PURSUANT TO THE REQUIREMENTS OF THE PROFESSIONAL LAND SURVEYOR'S ACT. #)4 ANDREW S. y� CiiMER ANDRPA(5rtH4ptR, PLS 8005 LICENSE EXPIRr=S DECEMBER 31, 2016 NO. 9005 PAGE 2 OF 2 X:1P1 215016 1SURVEY\Mapping\Exhibits\215016 LLA Exh Adocx N7775'25 "E 51. L= 67.99' R= 223.91' d= 177349" —, \ '39pE 231 � fl a (DOG � g r GRAPHIC SCALE \ ` VACANT LOr\t \ `Q ,o eo ao 100 ` LOT 4- TRACT 9570 805 M 235 2 inch = >oo ft .141 ACRES (EVSANG) u, 89 ACRES (PROPOSED) cr LOT 1s 49 11 v Iwo Z VACANT LOT \` % ` f. LOT 5 0 C65 TRACT 9670 -03 \ \ M 29-3.5 V o 3.93 ACRES (!� ) LEGEND A- ®®®® NEW LOT LINE \ — N567549 "E 12.00' EXISTING LOT LINE \ (R) RADIAL BEARING \ — P.S.E PUBLIC SERVICE EASEMENT \ EX. FL 000 N T OL\ SD STORM DRAIN Z000I SS SANITARY SEWER — N33'44'l t "W 69.52= DHE OVERHEAD LINES — _... _. EASEMENT LINE ._ N79;35'39 1E 387.70' � EXHIBIT "8" X Na.zQtsppoz EMAW _4 2 PLAT TO ACCOMPANY LEGAL s S !� $ I amu�upa 1" -too DESCRIPTION FOR PROPOSED MAMMN By' -�LOT LINE ADJUSTMENT i�+ 1 R 1 UnumaLum prq LOTS 4 & 5, TRACT 95M 213018 GILROY.. CA of 1 SHM Copyright @2014 by Sondis CALIFORNIA ALL-PURPOSE • •D 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 ) On j I before me,1�t�1 Date t I Hore Insert Name jand Title of the Officer personally appeared Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to bet person4 whose name( is are bscribed to the within instrument and ackno ledged to me that a she /tKey executed the same in hi her /their authorized capacity(ia<and that b his er /their signature on the instrument the person�sj' r the entity upon behalf of which the personja'jacted, executed the i strument. �� I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. ERIKA CRUZET WITNESS my d d official seal. Commission #r 2141338 i y Notary Public - California i Santa Clare County > Signature My Comm. Expires Feb 1, 2020 Signature of otary 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 Title or Type of Document: Document Date: 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 D Guardian or Conservator ❑ Other: Signer Is Representing: Signer's Name: D Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: 02014 National Notary Association • www.NationalNotary.org • 1- 800 -US NOTARY (1- 800 - 876 -6827) Item #5907 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE 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 `­) afl -t Cu C i a r O On em�f l(0 2db before me, a nd (U t' m\Ja afar Pkbtl , Date Here Insert Name and Title of the dfficer personally appeared 1[ S W Q� S e f Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the persons') whose name is /ar6 subscribed to the within instrument and acknowledged to me that heA "Ailey executed the same in his /Xr /tt*r authorized capacity), and that by his /lyet /th6ir signatureA on the instrument the persoW, or the entity upon behalf of which the person 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. SANDRA ion E. 2086 CJ � Commission #� 2086119 = Signature Clara County L6WVWZC0n8VU"N0V11I2018j ry Public - California anta 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 Ma►r4- onar�(C ff e_errien+ Title or Type of Document: S�nirmwaAer W? 4erafipn and Document Date: CorrtPrv�ber 16� Zolb Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑I 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: @2014 National Notary Association - www.NationalNotary.org - 1-800-US NOTARY (1-800-876-6827) Itern#5907