Oak Place Owners Association - 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 GOVERNM -ENT CQDE-SE£TK_W 3
APNs: 808 -48 -001 through 808 -48 -141
(Formerly APN: 808 -21 -033)
23652412
Regina Alcomendras clerk_Recorder
Santa clara county
05/17/2017 03:04 Pty
Titles: 1 Pages: 8
Fees: $0.00
Taxes: $0
Total: $0.00
1IIIW!
SPACE ABOVE THIS LINE FOR RECORDER'S USE
STORMWATER BMP
OPERATION AND MAINTENANCE AGREEMENT
THIS STORMWATER BMP OPERATION AND MAINTENANCE AGREEMENT ( "AGREEMENT ") is made
and entered into this day of '-- ", ,-s , 20 , , by and between the City of
Gilroy ( "CITY ") and Oak Place Owners' Association, a California non - profit corporation ( "OWNER ").
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. KB Home South Bay, Inc., a California corporation ( "DEVELOPER "), developed a residential
project on that certain tract or parcel of land more particularly described in Exhibit "A" attached
hereto (the "PROJECT ").
C. The DEVELOPER constructed on that portion of the Project described in Exhibit "B ", attached
hereto ( "PROPERTY "), certain improvements of the kind or nature described in the Post
Construction Storm Water Pollution Prevention Ordinance, Gilroy City Code Chapter 27D (the
"ORDINANCE ") that may have altered existing stormwater conditions on both the PROJECT and
adjacent lands.
D. To minimize adverse impacts due to these anticipated changes in existing storm and surface
water flow conditions, the DEVELOPER was required by the CITY to implement Best
Management Practices ( "BMPs ") and to build and maintain, at DEVELOPER's expense, those
certain stormwater management facilities ( "FACILITIES ") described on Sheet C2.03 of that
certain "Tract 10184 Oak Place Improvement Plan" prepared by HMH Engineers, dated October
22, 2013, and on file with the Public Works Department of the City of Gilroy, California, as such
plans are amended and are hereby incorporated by reference ( "IMPROVEMENT PLANS ").
E. The DEVELOPER has since transferred to the OWNER the ownership and maintenance of
certain areas of the PROPERTY where the FACILITIES are located.
F. The CITY has reviewed and approved the IMPROVEMENT PLANS with the stormwater details
subject to the execution of this AGREEMENT.
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NOW, THEREFORE, in consideration of the benefit received and to be received by the OWNER,
its successors and assigns, as a result of the CITY'S approval of the IMPROVEMENT PLANS, the
OWNER hereby covenants and agrees with the CITY as follows:
Covenants Running With the Land; Property Subject to Agreement: All of the real property
described in Exhibit "B" 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 "B"
( "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 OWNER 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 OWNER, its
successors and assigns, shall operate and perpetually maintain the FACILITIES in strict
accordance with the IMPROVEMENT PLANS and any amendments thereto that have been
approved by the CITY and /or the ORDINANCE.
Facility Modifications: At its sole expense, the OWNER, 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. OWNER 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.
Facility Inspections bV 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 IMPROVEMENT PLANS and any amendments
thereto approved by the City.
Failure to Perform Required Facility Repairs or Modifications: If the OWNER 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 IMPROVEMENT PLANS 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
OWNER 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 OWNER 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 OWNER. Whenever the CITY completes
remedial work or maintenance, the CITY will collect reimbursement for the costs of the work from
the OWNER, pursuant to Gilroy City Code 27D.17. 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
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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.
Indemnity: The OWNER, 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 or
costs and court costs, arising out of or related to the OWNER'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.
Obligations and Responsibilities of OWNER: Initially, the OWNER 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 OWNER 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.
Property Transfer: Nothing herein shall be construed to prohibit a transfer by the OWNER 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.
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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.
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 OWNER, its
successors and /or assigns, the CITY shall execute a release of this AGREEMENT which the
OWNER, it successors and /or assigns, shall record in the Clerk's Office, at its /their expense.
16. Successors and Assigns: The covenants of the OWNER set forth in numbered Sections 1
through 15 above shall run with the land described in Exhibit "B ", and the burdens thereof shall be
binding upon each and every part of the Property and upon the OWNER, its successors and
assigns in ownership (or any interest therein), for the benefit of W. Luchessa Avenue 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.
OAK PLACE OWNERS' ASSOCIATION,
a Californ' on- profit corpd o ion
By:
Name:
Title: i
(Notary acknowledgment to be attached)
CITY OF GILROY
By:
Name: Kristi Abrams
Title: Acting City Engineer
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"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 )SS
COUNTY OF Contra Costa )
On March 13, 2017, before me, Dee S. Bumanlag, Notary Public, personally appeared Charles Hazelbaker, who
proved to me on the basis of satisfactory evidence to be the person() whose name( is /are subscribed to the
within instrument and acknowledged to me that he /she/they executed the same in his /i eir authorized
capacity(-ies), and that by his /her/thei r signature(-s) on the instrument the person(s), or the entity upon behalf of
which the persons) 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.
Signature
My Commission Expires: 10/6/2018
Notary Name:Dee S. Bumanlag
Notary Registration- Number:2O85167
DEE S. BUMANLAG
Commission # 2085167
Z ; Notary Public - California z
Z ' Contra Costa County
My Comm. Expires Oct 6, 2018
This area for official notarial seal
Notary Phone: 925-983-4528
County of Principal .Place of Business: Contra Costa
Page 1 of I
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 ';o-n En C InEQ )
On IMarGh Zk. 201 �L before me, Sand o t • Nove Notary Pai j/C ,
Date Here Insert Name and ttle of the Officer
personally appeared r I St 10 ra M S
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /arb
subscribed to the within instrument and acknowledged to me that executed the same in
his /her /therrr authorized capacityW, and that by jails` /her /ter signature* on the instrument the person4,
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.
SANDRA E. NAPA WITNESS my hand and official seal.
Commission # 2086119
Notary Public - California i
Santa Clara County ' Signature
COMM. fires Nov 11, 2018+ 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 T
aid Mq,n-�encaxe A-g ePment
Title or Type of Document: c, -trrm ,,ua `I'e r [?� AI P Ue n+ o n Document Date: M h ('3 . 2n )9-
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
The Project
All that certain real property located in the City of Gilroy, County of Santa Clara, State of
California shown on that certain map of Tract 10184, filed for record on November 26, 2013, in Book 866
of Maps at Pages 24 through 33, inclusive, in the Official Records of the County of Santa Clara, State of
California.
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EXHIBIT B
The Property
All that certain real property located in the City of Gilroy, County of Santa Clara, State of
California shown on that certain map ( "Map ") of Tract 10184, filed for record on November 26, 2013, in
Book 866 of Maps at Pages 24 through 33, inclusive, in the Official Records of the County of Santa Clara,
State of California, EXCEPTING THEREFROM Lots 1 through 214, inclusive, as shown on the Map.
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