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2013/12/02 Agreement O'Reilly Automotive Stores- BMP Right of Entry agreement- APN: 339-200-084RECORDING REQUESTED BY: CITY OF MENIFEE AND WHEN RECORDED MAIL TO: CITY OF MENIFEE ENGINEERING DEPARTMENT 29714 HAUN ROAD MENIFEE, CA 92586-6540 C tfy of Men%, ,,DEC 12 200 Received DOG # 2013-0559934 12/02/2013 09:30A Fee:NC Page 1 of 6 Recorded in Official Records County of Riverside Larry W. Ward iis=iiiii CountyClerkii Recorder ii F S R I U I PAGE SIZE FDA FMISC LONG RFD COPY M Annd� L 465 1 426 PCOR NCOR SMF CR EYA UNI T: CTY SPACE ABOVE THIS LINE FOR RECORDER'S USE WATER QUALITY MANAGEMENT PLAN AND STORMWATER BEST MANAGEMENT PRACTICES OPERATION, TRANSFER, MAINTENANCE AND RIGHT OF ENTRY AGREEMENT PROJECT NAME: O'Reilly Auto Parts Store PROPERTY OWNER NAME: O'Reilly Automotive Stores, Inc. PROPERTY ADDRESS: 25894 Newnort Road Menifee, CA 92584 APN: 339-200-084 THIS AGREEMENT is made and entered into in Menifee, California, this ' &7ay of August, 2013, by and between O'Reilly Automotive Stores, Inc., a Missouri corporation, hereinafter referred to as "Owner", and the CITY OF MENIFEE, a municipal corporation, located in the County of Riverside, State of California hereinafter referred to as "CITY;" WHEREAS, the City is a Co-Permittee for discharging stormwater from its MS4 facilities pursuant to the Santa Ana Regional Water Quality Control Board Order No. R8-2010-0033, MS4 NPDES Permit No. CAS 618033. Under the terms of the permit the City is required to enforce the provisions of the permit within its jurisdiction. The requirements contained in this agreement are intended to achieve the goals of the MS4 permit; WHEREAS, the Owner owns real property ("Property) in the City of Menifee, County of Riverside, State of California, more specifically described in Exhibit "A" and depicted in Exhibit "B", each of which exhibits is attached hereto and incorporated herein by this reference; WHEREAS, at the time of initial approval of development project known as: O'Reilly Auto Parts Store within the Property described herein, the City required the project to employ Best Management Practices, hereinafter referred to as "BMPs," to minimize pollutants in urban runoff, WHEREAS, the Owner has chosen to install and/or implement BMPs as described in the Water Quality Management Plan, on file with the City, hereinafter referred to as "WQMP," to minimize pollutants in urban runoff and to minimize other adverse impacts of urban runoff; WHEREAS, said WQMP has been certified by the Owner and reviewed and accepted by the City; WHEREAS, said BMPs, with installation and/or implementation on private properly and draining only private property, are part of a private facility with all maintenance or replacement, therefore, the sole responsibility of the Owner in accordance with the terms of this Agreement; WHEREAS, the Owner is aware that periodic and continuous maintenance, including, but not necessarily limited to, filter material replacement and sediment removal, is required to assure peak performance of all BMPs in the WQMP and that, furthermore, such maintenance activity will require compliance with all Local, State, or Federal laws and regulations, including those pertaining to confined space and waste disposal methods, in effect at the time such maintenance occurs; NOW THEREFORE, it is mutually stipulated and agreed as follows Right of Access: Owner hereby provides the City of Menifee designee complete access, of any duration, to the BMPs and their immediate vicinity at any time, upon reasonable notice, or in the event of emergency, as determined by the City's Engineer, no advance notice, for the purpose of inspection, sampling, testing of the Device, and in case of emergency to direct all necessary repairs or other preventative measures at owner's expense as provided in paragraph 3 below. City shall make every effort at all times to minimize or avoid interference with Owner's use of the Property. 2. Responsibility for Operation and Maintenance of BMPs: Owner shall use its best efforts diligently to maintain all. BMPs in a manner assuring peak performance at all times. All reasonable precautions shall be exercised by Owner and Owner's representative or contractor in the removal and extraction of any material(s) from the BMPs and the ultimate disposal of the material(s) in a manner consistent with all relevant laws and regulations in effect at the time. As may be requested from time to time by the City, the Owner shall provide the City with documentation identifying the material(s) removed, the quantity, and disposal destination. City Maintenance at Owner's Expense: In the event Owner, or its successors or assigns, fails to accomplish the necessary maintenance contemplated by this Agreement, within five (5) days of being given written notice by the City, the City is hereby authorized to cause any maintenance necessary to be done and charge the entire cost and expense to the Owner or Owner's successors or assigns, including administrative costs, attorneys fees and interest thereon at the maximum rate authorized by the Civil Code from the Date of the notice of expense until paid in flit]. The City, at its sole election, may take these costs to be a lien upon the property that may be collected at the same time and in the same manner as ordinary municipal taxes as provided in Government Code II IIIII I IIII III IIIIII IIIIII IIIII II INr�,©1 E ossR9'laOF entire cost and expense to the Owner or Owner's successors or assigns, including administrative costs, attorneys fees and interest thereon at the maximum rate authorized by the Civil Code from the Date of the notice of expense until paid in full. The City, at its sole election, may take these costs to be a lien upon the property that may be collected at the same time and in the same manner as ordinary municipal taxes as provided in Government Code section 38773.5. Nothing in this section or this Agreement creates an obligation by the City to maintain or repair any BMP, nor does this section prohibit the City from pursuing other legal recourse against Owner. 4. Surety Bond: The City may require the owner to post security in form and for a time period satisfactory to the City to guarantee the performance of the obligations stated herein. Should the Owner fail to perform the obligations under the Agreement, the City may, in the case of a cash bond, act for the Owner using the proceeds from it, or in the case of a surety bond, require the sureties to perform the obligations of the Agreement. As an additional remedy, the City's Engineer may withdraw any previous stormwater-related approval with respect to the property on which BMPs have been installed and/or implemented until such time as Owner repays to City its reasonable costs incurred in accordance with paragraph 3 above. 5. Recording: This agreement shall be recorded in the Office of the Recorder of Riverside County, California, at the expense of the Owner and shall constitute notice to all successors and assigns of the title to said Property of the obligation herein set forth, and also a lien in such amount as will fully reimburse the City, including interest as herein above set forth, subject to foreclosure in even of default in payment. 6. Attorney's Fees: In event of legal action occasioned by any default or action of the Owner, or its successors or assigns, then the Owner and its successors or assigns agree(s) to pay all costs incurred by the City in enforcing the terms of this Agreement, including reasonable attorney's fees and costs, and that the same shall become a part of the lien against said Property. 7. Covenant: It is the intent of the parties hereto that burdens and benefits herein undertaken shall constitute covenants that run with said Property and constitute a lien there against. 8. Binding on Successors: The obligations herein undertaken shall be binding upon the heirs, successors, executors, administrators and assigns of the parties hereto. The term "Owner" shall include not only the present Owner, but also its heirs, successors, executors, administrators, and assigns. Owner shall notify any successor to title of all or part of the Property about the existence of this Agreement. Owner shall provide such notice prior to such successor obtaining an interest in all or part of the Property. Owner shall provide a copy of such notice to the City at the same time such notice is provided to the successor. 9. Time of the Essence: Time is of the essence in the performance of this Agreement. 10. Notice: Any notice to a party required or called for in this Agreement shall be served in person, or by deposit in the U.S. Mail, first class postage prepaid, to the address set forth below. Notice(s) shall be deemed effective upon receipt, or seventy-two (72) hours after deposit in the U.S. Mail, whichever is earlier. A party may change a notice address only by providing written notice thereof to the other party. 1111� II I 1 I II II1�1 II II �I 2013, 1559'g3t 12, F�c.r3 of F6 : ©R IF TO CITY: City of Menifee 29714 Haun Road Menifee, CA 92586-6540 IF TO OWNER: O'Reilly Automotive Stores, Inc. Attn: Scott Kraus, VP of Real Estate 233 S. Patterson Springfield MO 65802 IN WITNESS THEREOF, the parties hereto have affixed their signatures as of the date first written above. CITY: t OWNER: W By: - D " By: Robe ohnson -Scott Interim ity Manager Title: VP of Real Estate CYRO., o1 ALLY Omotwe. OWNER: By: Ju ie ray Title: Assistant Secretary APPROVED AS TO FORM: J�f� Biggs, i y tC t torney ATTEST: /7 )i iLt Kathy ennett, City Clerk NOTARY ACKNOWLEDGEMENTS ON FOLLOWING PAGE III IIII II II II II III I II III I 1111 III r"20140 55�934ea STATE OF CALIFORNIA ) ss COUNTY OF ) On the � day of Aus� —, 2013, before me, 73wt l fa- N tati , a Notary Public, personally appeared Robert A. Johnson, Interim City Manager, solely in his capacity as Interim City Manager, known to me (or 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 as Interim City Manager, and that by his signature on the instrument, the person, or the entity upon behalf of which the person 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. -++----.+ JENNIFER ALLEN Commission Witness my hand and official seal. # 1984645 a z Notary Public -California z J Riverside County n My Comm. Expires Jul 9, 2016 otary Pub (SEAL) STATE OF MISSOURI ) ) ss COUNTY OF ) On It day of Idyl , 2013, before me, a Notary Public, liersonally appeared Scott Kraus, VP of Real E to and Julie G , Assistant Secretary, solely in their capacity as VP of Real Estate and Assistant Secretary, known to me (or who proved to me on the basis of satisfactory evidence) to be the people whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacity as VP of Real Estate and Assistant Secretary and that by their signature on the instrument, the person, or the entity upon behalf of which the people acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of Missouri that the foregoing paragraph is true and correct. seal. o� ' `ea. ELI7ABETH A. LUGGER Notary Public. Slate of Miesoun sFM�'�r { Christian County Commission #10398753 My¢ ommission Expires June 25, 2014 (SEAL) II III ! I I I I II 1 I II II ! 111111111z,� 15of5 Es �9n EXHIBIT A (Legal Description) MEASURED METES AND BOUNDS DESCRIPTION THE LAND REFERRED IS SITUATED IN THE CITY OF MENIFEE, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: PARCEL 4 OF PARCEL MAP No. 26361 ON FILE IN BOOK 172 PAGES 28 AND 29 OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY CALIFORNIA MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE CENTERLINE INTERSECTION OF NEWPORT ROAD AND MURRIETA ROAD AS SHOWN ON SAID PARCEL MAP; THENCE N89°33'23"W, 474.05 FEET; THENCE N00°22'33"E, 31.36 FEET TO THE POINT OF BEGINNING ALSO BEING THE BEGINNING OF A NON -TANGENT CURVE CONCAVE SOUTHERLY HAVING A RADIUS OF 2255.00 FEET TO WHICH A RADIAL LINE BEARS N08°15'19"W; THENCE ALONG THE NORTHERLY RIGHT OF WAY LINE OF NEWPORT ROAD AND WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 1053'26" A CURVE LENGTH OF 67.81 FEET; THENCE N89°33'23"W, 76.10 FEET; THENCE N00°22'33"E, 180.77 FEET, THENCE S89°37'27"E, 142.96 FET; THENCE SOO°22'33"W, 169.58 FEET TO THE POINT OF BEGINNING. CONTAINING 25,463 SQUARE FEET MORE OR LESS (0.584 ACRES) ezl:e r E 3aa