Performance Food Group - Stormwater BMP Operation and Maintenance Agreement* *This document was electronically submitted
1 to Santa Clara County for recording **
Recording Requested By
Old Republic Title
RECORDING 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 S
23947907
Regina Alcomendras'
Santa Clara County - Clerk- Recorder
06/05/2018 08:26 AM
Titles:1 Pages: 11
Fees: $0.00
Tax: $0
Total: $0.00
SPACE ABOVE THIS LINE FOR RECORDER'S
STORMWATER BMP
OPERATION AND MAINTENANCE AGREEMENT
THIS STORMWATER BMP OPERATION AND M �NTENANCE AGREEMENT ( "AGREEMENT") is made
and entered into this 2-(d day of Il , 20,�G, by and between the City of
Gilroy ( "CITY ") and PERFORMANCE FOOD GROUP, M., a Colorado 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. OWNER developed a certain tractor parcel of land more particularly described in Exhibit "A" attached
hereto (the "PROPERTY ").
C. The OWNER constructed 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 have altered 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 OWNER is required by the CITY to implement Best Management Practices
('BMPs ") and to build and maintain, at OWNER's expense, stormwater management facilities
( "FACILITIES "), more particularly described and shown in the Erosion Control and Stormwater
Management Plan prepared on behalf of OWNER by HKF Engineers and dated November 2017,
which plans and any amendments thereto, are on file with the Public Works Department of the City of
Gilroy, California, and are attached hereto as Exhibit "B" ( "Stormwater Management Plan ").
E. The CITY has reviewed and approved the Stormwater Management Plan subject to the execution of
this AGREEMENT,
Recording Requested By
Old Republic Title
RECORDING REQUESTED BY:
CITY OF GILROY
WHEN RECORDED MAIL DOCUMENT TO:
CITY OF GILROY
CITY CLERK
7351 ROSANNA ST
GILROY, CA 95020
PER AT NO FEE
PER G 1VERNMENT C,
APNs: 841 -14 -026 and 84
DE SECTION 6103
- 14-027
This document has been
electronically recorded. See
the attached cover page for
recording information.
PACE 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 pit 20 by and between the City of
Gilroy ( "CITY ") and PERFORMANCE FOOD GROUP, INC., a Colorado 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. OWNER developed a certain tract or parcel of land more particularly described in Exhibit "A" attached
hereto (the "PROPERTY ").
C. The OWNER constructed 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 have altered existing stormwater conditions on both the
PROPERTY and adjacent lands.
D. �' tcd change-sin existing str,
O minl(T11Ze adverse Im aClS due tv tircSc ci7ii:.i' °s°.i�;� .., storm and surface water
flow conditions, the OWNER is required by the CITY to implement Best Management Practices
( "BMPs ") and to build and maintain, at OWNER's expense, stormwater management facilities
( "FACILITIES "), more particularly described and shown in the Erosion Control and Stormwater
Management Plan prepared on behalf of OWNER by BKF Engineers and dated November 2017,
which plans and any amendments thereto, are on file with the Public Works Department of the City of
Gilroy, California, and are attached hereto as Exhibit "B" ( "Stormwater Management Plan "),
E. The CITY has reviewed and approved the Stormwater Management Plan subject to the execution of
this AGREEMENT.
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 Stormwater Management Plan, the
OWNER, 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
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 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 Stormwater 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 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.
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 Management Plan and any
amendments thereto approved by the City.
5. Failure to Perform Required Facility, Reoairs 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 Stormwater Management Plan and in accordance with the
law and applicable regulations of the ORDINANCE, the authorized enforcement officer, described
in Gilroy City Code 270.2, 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.
6. 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 SMP 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.
8. 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.
.3.
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 i
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 OWNER, its successors and assigns in ownership (or any
interest therein), for the benefit of Monterey Road 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.
PERFORMANCE FOOD GROUP
By:
Name: -�Pl1 C
Title:
(Notary acknowledgment to be attached).
CITY OF GILROY
By:
Name: Kristi -Abra °ms
Title: City Enaineer
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STATE OF COLORADO )
)ss
COUNTY OF ARAPAHOE )
On this Z 5 day of December, 2017, before me, the undersigned, a Notary Public in
and for the above state and county, personally appeared Kent R. Berke, the Sr. Vice President
of Performance Food Group, Inc., personally known to me or proved to be the person named in
and who executed the foregoing instrument, and being first duly sworn, such person
acknowledged that he or she executed said instrument for the purposes therein contained as his
or her free and voluntary act and deed.
Witness my hand and official seal
Commission Expires: t IZ't 11 ly Cj
MARIANNE MARI NOTARY PUBLIC
NO AMY PU13UC
STATE OF COLORADO
NOTARY ID (SEAL) COMW5$10N E %p FES !ok!WPY 0
Mr 2414
CAC i OR4'N9dA PUR • •OS A KNO L D• t,PRENT VIl Oiiir § 11:
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 )G ri--Va C
On Fek-[AA(Li before me, Janjra C. NAV61+ NAmn4 P 0 ,
Date Mere Insert Name and Title of the Officer
personally appeared
G acv k -ea
of Signer(s)
who proved to me on the basis of satisfactory evidence to be the persons) whose names) 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 /her / their 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.
SANDRA E. NAVA WITNESS my hand and official seal.
Commission # 2086119 �f
Z ,.e Notary Public - California n�i�
Z Santa Clara Count
My Comm. Expires Nov 11, 2018 Signature
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 MAI►14mance Agfeerneh+
Title or Type of Document: '.� ►_ +y l< �� }�� �,m� oper4jjyi1 IN)Document Date: rebrwrerIA 2019
Number of Pages: Signer(s) Other Than Named Above: J
Capacity(pes) Claimed by Signers)
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:
•dG�<�G' ✓G'e� •d •m •ei .� •e.4�G`�G�G�'!4�;G�d4� 'd 'd 'd 'd' '�/G�'!G`�/G <:!G�ti 'd -er -dry -d •er -d -d a� d •d 'a 'd,'�/G'd -d •d' •e'
K610, 1111091MEVTTENMS • UsTO 12 • • • i i i • • i •
EXHIBIT A
DESCRIPTION OF PROPERTY
The Property is that certain real property located in the City of Gilroy, County of Santa Clara,
State of California, and is described as follows:
APNs: 841 -14026 and 841 -14 -027
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li
PARCEL ONE
The Southerly portion of the partlyingbetween the Southern Pacific Tracks and the Monterey Road of
Lot No.loftheThos.ReaSubdivision of Las Animas Ranch Lot 53,amapof which is filedinbookF
of Maps, page 24 in the Office ofthe County Recorder of Santa Clara County, California, and more
particularly des cribed as follows:
Beginningata 1 1/4"pipe onthe eastline ofthe Monterey Road onthe linebetween Lots 1 and 2 ofsaid
Subdivision ,thence along saidline North 72 °00' East 31.265 chains to a 4 "x 4 'post intheWestlineof the
Southern Pacific Railroad right of way; thence along said West line North 43° 30' West 9.706 chains to a
2 "x2 "stake; thence South 72 °00'West27.073 chains to a 1 "pipeinthe East line of Monterey Road;
thence along said East line of the Monterey Road South 18° 00' East 8.773 chains to the point of
beginning.
Excepting therefrom so much thereof as conveyed to Gennero P. Filice et ux, by instrument recorded
July 3, 1962 in Book 5633 Page 351, Official Records, and beingmore particularly described as follows:
Beginning at a point in the Northeasterly line of Monterey Road as said Northeasterly linewas
established by Deed from Frank Filiceand Theresa Filice, his wife, to the State of California, dated June
22,1949 and recorded July28,1949 in Book 1824 of Official Records, page 427, Santa Clara County
Records,distant thereon North 18 °West 389.02feet from the dividing linebetweenLots land 2as
shownontheMap hereinafter referred to; thence along said Northeasterlyline of Monterey Road
North 18° West 20.00 feet; thence leaving said last mentioned line North 72° East parallel with the
said dividing line between Lots 1 and 2,218.00 feet; thence parallel with said line of Monterey Road
North 18 °West 50.00 feet; thence North 72° East parallel with said dividing line between Lots land 2,
276.00 feet; thence South 18° East parallel with said Northeasterly line of Monterey Road, 150.00 feet;
thence South 72° West parallel with the said dividing line between Lots land 2, 276.00 feet; thence
North 18° West parallel with the said Northeasterly line of Monterey Road, 80.00 feet; thence South
72 °Westparallel with the said dividingline betweenLots land2, 218.00feetto the point of
beginning and being apart of Lotlof theThos,Rea Subdivision of LasAnimas Ranch Lot53,
whichMap was filedforrecord inthe Office ofthe Recorderof the County of Santa Clara, State of
California; in Book F of Maps, page 24.
Alsoexcepting therefromsomuch thereof as conveyed to the State of California by Instrument
recorded July 28, 1949 in book 1824page427, Official Records and beingmore particularly described
as follows:
Commencing at the point of intersection of the Easterly line of the existing state highway (66 feet wide),
between Gilroy and Sargent Overhead Crossing, with the Southerly line of said Lot 1, said pointbeing
distant North 72° 01'45" East, 67.78 feet from Engineer's Station "C13" 574 +23.99 on the centerline of the
department of public works'survey forthe State freeway inSanta Clara County, between Gilroy and
Sargent overhead Crossing, Road N- SC1 -2 -C; thence along said Easterly highway line North 17° 58'15
West., 5 78.9 3 feetto the propertyl ine common to the lands, now orformerly, of Frank Filice, etux, andof
Joseph Richard Musso; thence along said Common property line North 72'01'45" East, 15.22 feet to a line
parallelwith and distant 83 feet Easterly, atrightangles, from said "C13" centerline; thence along said
parallel line South 170 58' 15" East, 578.93 feetto the property line common to the lands, now or formerly,
of Frank Filice, et ux, and of Pasquale Lamacchia, et ux; thence along last said common property line South
72° 0V45 " West., 15.22 feetto the point of commencement.
A -2
PARCEL TWO
Beginning ata pipe driven belowthe surface North 72° East4.030 chains fromthe Northwestern corner
and on theNortherlylineof that certain 25.59acretract deeded by W.J. Hannaand Fannie S. Hanna
to AugustDauberg; etux, in December 1927andrecorded in Book365 of Official Records,Page275,
Records ofthe Office ofthe County Recorder ofthe County of Santa Clara, State of California; thence
along the said Northerly line North 72° 71° East 23.043 chains to a2" x 2" stake at the Northeasterly
cornerofsaid 2 5.5 9 acretract in theWesterlylineofthe Southern PacificRightofWay; thence along
said Westerly line North43° 30' West 1948 chains to apipe; thence South 72° West 20.809 chains to an
iron bar; thence South 18 °15'West 2.18 chains tothepointof beginning. Beinga portionofthe part
lying betweenthe Southern Pacific Tracks andthe Monterey Road of Lot lof theThos Rea Subdivision of
Las Animas Ranch Lot 53, a map of Which is filed in Book "F" of Maps, page 24inthe office of the County
Recorder of the County of Santa Clara, State of California.
Parcel Three
Beginning at a point in the Northeasterly line of Monterey Road as said Northeasterly line was
established byDeedfromFrankFilice and Theresa Filice, hiswife, tothe State ofCalifornia, dated
June22,1949 and recorded July 28, 1949 in Book 1824 of Official Records, page 427, Santa Clara County
Records, distant thereon North 18° West 389.02 feet from the dividing line between lots 1 and 2 as
shown on the map hereinafter referred to; thence along said Northeasterly line of Monterey Road North
18° West 20.00 feet; thence leaving said last mentioned line North 72° East parallel with the said
dividing line between Lots1 and 2, 218.00 feet; thence parallel with said line of Monterey Road
North 18° West 50.00 feet; thence North 72° East parallel with said dividing line between Lots land
2, 276.00 feet; thence South 18° East parallel with said Northeasterly line of Monterey Road, 150.00
feet; thence South 720 West parallel with the said dividing line between Lots 1 and 2, 276.00 feet;
thence North 18° West parallel with the said Northeasterly line of Monterey Road, 80.00 feet; thence
South 72° West parallel with the said dividing line between Lots land 2, 218.00 feet to the pointof
beginning andbeingapartof Lot lof the Thos. Rea SubdivisionofLasAnimas Ranch Lot 53,which
map was filed for record inthe Office of the Recorder of the County of Santa Clara, State of California,
in Book F of Maps, page 24.
A -3
EX)FIIBIT B
PFG C301 Erosion Stornnvater Control Plan BKF
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