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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 -2- 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 -4- 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 [Continued on Next Page] 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 [Continued on Next Page] 101 -.-I ;-i-_