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24593672 - Stormwater BMP Operation and Maintanance Agreement - - Recorded 08/28/2020RECORDING 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 6103 24593672 Regina Alcomendras Santa Clara County - Clerk -Recorder 08/28/2020 01:10 PM Titles: 1 Pages: 7 Fees: $0.00 Taxes: $0 Total: $0.00 uIII 1 rrVI CAY I / P.Ilikltilli: NI 11411/714.111111 APN: 841-70-041 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 f i IVC41t , 202.0 , by and between the City of Gilroy ("CITY") and Trac Ngoc Vu ("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. The OWNER is the owner of a certain tract or parcel of land more particularly described in Exhibit "A" attached hereto (the "PROPERTY"). C. The OWNER 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 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 Stormwater Runoff Management Plan prepared by Fareed T. Siddiqui P.E. - STUKAM Consulting Engineers, 916-835-5791 and dated August 17, 2016. 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 OWNER, its successors and assigns, as a result of the CITY'S approval of the Stormwater Runoff Management Plan, the OWNER, 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 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 any of the owners of any of the property 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 their sole expense, the OWNER, 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 or the ORDINANCE. BMP areas are shown in EXHIBIT B. 3. Facility Modifications: At their 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 Runoff Management Plan and any amendments thereto approved by the City. 5. 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 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 30 day written notice to correct the violation. If the OWNER fails to correct the violations within the 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.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 24 hours written notice. 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.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 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 BMPs 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 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. Pursuant to Gilroy City Code Section 27D.10, owners with structural BMPs on their property shall complete two annual inspections per year that meet the following parameters: (a) The property owner(s) shall be responsible for having all storm water management facilities inspected for condition and function by a certified qualified storm water practitioner (QSP). (b) Storm water facility inspections shall be done at least twice per year, once in fall, in preparation for the wet season, and once in winter. Written records shall be kept of all inspections. Pursuant to City Code Section 27D.11 the property owner shall provide the City with their records of inspections, maintenance and repair. Inspection results and follow-up shall be provided to the City in report format using the City's BMP Inspection Report template. Inspections shall include all applicable field observations required for the specific BMP type as described in the Best Management Practices Rapid Assessment Methodology (BMP RAM) Field Protocols document. 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. 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, 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 Stormwater BMP Facility 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. (OWNER) By: (r\POI& Name: 1 AC AS i,%t.l Title: O(,t 1l) C-12 • Address: 2S?) €tC hel Rts C lro\I, (A grb27 Phone: (-/OR) c — 073(71 Email: &aC Yl vul( CtiY1 (Notary acknowledgment to be attached) CITY OF GILROY By: Name: Girum Awoke Title: Public Works Director 4848-8399-0806, v. 2 EXHIBIT "A" Legal Description For APN/Parcel ID(s): 841-70-041 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF GILROY, COUNTY OF SANTA CLARA, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS: PARCEL ONE: All that certain parcel of land described as "Resultant Parcel 1" in that certain Certificate of Compliance recorded December 10, 2003 as Instrument No. 17520707, Official Records of the County of Santa Clara, being more particularly described as follows: All that real property situated in the City of Gilroy, County of Santa Clara, State of California and being a portion of Lot 5 as shown on "Tract No. 9487 Gilroy Crossing", filed for record in the Office of the Recorder of Santa Clara County on July 8, 2003 in Book 762 of Maps, at Pages 20-25 inclusive and also being a portion of the now abandoned Brem Lane described in that certain Quitclaim Deed to Regency Realty Group, Inc. A Florida Corporation, filed for record in the Office of the Recorder of Santa Clara County on October 6, 2003 in Document No. 17397359. More particularly described as follows: Beginning at the Southeast corner of said Lot 5; thence along the South line thereof North 84°15'31" West 266.82 feet; thence North 10°07'56" East 22.53 feet; thence North 11 °36'27" West 32.87 feet; thence North 78°23'33" East 16.60 feet; thence North 11 °36'27" West 37.97 feet; thence South 23°23'33" West 23.50 feet; thence North 12°16'52" West 18.62 feet; thence North 01 °48'50" East 16.36 feet; thence North 78°23'33" East 24.07 feet; thence along the arc of a non -tangent 75.00-foot radius curve, concave to the Southeast from a radius point that bears South 39°01'06" East, through a central angle of 37°30'30", an arc length of 49.10 feet; thence North 88°28'53" East 2.06 feet; thence along the arc of an 893.01-foot radius curve concave to the South, from a radius point that bears South 01 °31'07" East, through a central angle of 06°55'21", an arc length of 107.89 feet; thence South 84°35'46" East 84.44 feet; thence along the arc of a 40.00-foot radius curve, concave to the Southwest, through a central angle of 90°47'25", an arc length of 63.38 feet; thence South 06°11'39" West 117.97 feet to the point of beginning. PARCEL TWO: Non-exclusive easements for the benefit of said land as created in that certain "Operation and Easement Agreement" executed by and among Target Corporation, a Minnesota corporation, Kohl's Department Stores, Inc., a Delaware Corporation, and Regency Realty Group, Inc., a Florida corporation, recorded March 3, 2003, Instrument No. 16871019, Official Records. CLTA Preliminary Report Form - Modified (11.17.06) Printed: 09.30.14 @ 09:36AM by LC SCA0002402.doc / Updated: 04.24.14 3 CA-CT-FWPS-02180.054980-SPS-1-14-FWPS-TO14001125 / EXHIBIT B - BMP Facilities & Responsibilities Map PACHECO PASS A? Responsibirity Chart Location Description Maintained by Owner 1 Bioretention Basin X 2 Bioretention Basin X Location 1 9487 (SHELL STATION -1) -1 -A ! Location 2 !I 487 (SHELL STATION -1) -2 -A ; I� jl P.O.C. Point of GGmectbn - See GMI Plans 1 1 f SHELL GAS STATION 850 PACHECO PASS HWY GILROY, CA 95020 9 Jo g "Bed' 9E8917Zt7Z# DOG CALIFORNIA 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 •-5Ar Y\ Ont A -7 46D__� before Date personally appeared me, } C tt-(Zi S'i f N N. i-1u 1A; goiACk/ Here Insert Name and Title of the Officer Name(s) of Signer(s) 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/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. CHRISTINE NGOC HUYNH COW. / 2201131 C MUM PLOW •CAUFORN&A SANTA CLAM COUNTY Comm_Exp. JUNE 12, 2021 Place Notary Seal and/or Stamp Above 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: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Corporate Officer — Title(s): ❑ Partner — 0 Limited 0 General 0 Partner — ❑ Limited 0 General ❑ Individual 0 Attorney in Fact 0 Individual 0 Attorney in Fact ❑ Trustee ❑ Guardian or Conservator 0 Trustee ❑ Guardian or Conservator ❑ Other: 0 Other: Signer is Representing: 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 OPTIONAL Signature o Notary Public Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document SI: M v.S Z 0 €. I`/\ {Z ►'' r�i Signer is Representing: ©2019 National Notary Association