Brookfield Mataro - 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 GOVERNMENT CODE SECTION 6103
APN: 808-50-001 through 808-50-051
24092980
Regina Alcomendras
Santa Clara County - Clerk -Recorder
01/07/2019 10:40 AM
Titles: 1 Pages: 8
Fees: 0.00
Taxes: 0
Total: 10.00
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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 17 day ofRcc_--;S- %201 6, by and between the City of Gilroy ("CITY") and
Brookfield Mataro LLC, A Delaware Limited Liability Company ("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 Ruggeri -Jensen -Azar, titled Stormwater Runoff Management Plan for Glen Loma Ranch -
Phase 1A and dated September, 2014. 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:
Covenants Runnina With the Land: Prooertv Subiect to Aareement: 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.
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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.
Facilitv 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.
Facilitv 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.
Failure to Perform Required Facilitv 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.
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.
Obliqations 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
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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.
Propertv Transfer: Nothing herein shall be construed to prohibit a transfer by the OWNER to
subsequent owners and assigns.
Attornevs' 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.
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16. Successors and Assians: 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 the 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.
Brookfield Mataro LLC, A Delaware Limited Liability Company (OWNER)
Name: ��! w,' " e'�. ' 6611- Jam" )20
(Notary acknowledgment to be attached)
CITY OF GILROY
By:
Name: G4ry Heap
(_jZeCitv Enqineer
4848-8399-0806, v. 2
4848-8399-0806v2
MVAKHARIA104706091
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 Contra Costa
On_ D'e C /0 , before me, Yvonne M. Craves, Notary Public.
Date Here Insert Name and Title of the Officer
personally appeared William C. Schneider
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which
the person acted, executed the instrument.
YVONNE M.CRAVES
NotaryPublic- California z
Contra Costa County ;
Z Commission # 2194834
My Comm. Expires Mar 26, 2021
Place Notary Seal Above
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 0,
Signature of Notary Public
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Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Clapacity(ies) Claimed by Signer(s) ❑
Signer's NamEl ❑ Signer's NamEEI ❑
❑ Corporate Officef3-- Title(s): ❑ Corporate Officei -- Title(s):
❑ ❑ ❑ ❑
❑ Partner — T i_mitpd ren�rnl ❑ Partner — Limited General
Individual Attampy in Fact Individual Attorney in Fact
Tpistee r�lardian or Conservator Trustee Guardian or Conservator
Signer Is Representing:
Signer Is Representing:
02015 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907
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 1
County of 7)n n.-+n G 1
On I�E'_GPM�C'C )-') , Z019 before me, SCI (d (-0 C. NOW. NAOr'Ll PU )'IC,
Date / Here Insert Name and Title of the Offlecer
personally appeared l "FC1 ( IlA
_J Name(s) d Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s'f whose name() is/pre subscribed
to the within instrument and acknowledged to me that he/,she/they executed the same in his/h4r/th,6ir
authorized capacity &), and that by his//her/thdir signatureO on the instrument the person(s), 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
SANDRAE. NAVA is true and correct.
Notary Public - California paragraph
.' Santa Clara County
Commission N 2262752 [
My Comm. Expires Nov 11, 2022 ■
WITNESS my hand and official seal.
Signature
Place Notary Seal and/or Stamp Above Signature of Notary Public
OPTIONAL
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fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document: S't-v(-mi,cjrEer PY11P Dperd+'l DA And Main+e,i4MCe
J
Document Date:
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:
Number of Pages:
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
❑ Other:
Signer is Representing:
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02018• Notary• •
EXHIBIT A
LEGAL DESCRIPTION
Real property in the City of Gilroy, County of Santa Clara, State of California, described as follows:
PARCELS J and M, AS SHOWN ON THE MAP OF "TRACT 10254 MATARO" FILED FOR RECORD ON
OCTOBER 22, 2014 IN BOOK 876 OF MAPS AT PAGES 42 THROUGH 53, INCLUSIVE, SANTA CLARA
COUNTY RECORDS.
EXHIBIT B - BMP Facilities & Responsibilities Map
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