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2011/09/21 Agreement Texas Road House BMP right of entry agreementRECORDING REQUESTED BY: CITY OF MENIFEE AND WHEN RECORDED MAIL TO: CITY OF MENIFEE ENGINEERING DEPARTMtNT 29714 HAUN ROAD MENIFEE, CA 92586-6540 DOC # 2011-0420023 09/21/2011 04:40P Fee:NC Page 1 of 9 Recorded in Official Records County of Riverside Larry W. Ward Assessor, County Clerk & Recorder 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 OWNER NAME: Fexu ltvad ho,ic o i^/41e(.e PROPERTY ADDRESS: CA q.z APN: THIS AGREEMENT is made and entered into in California, this // f� day of 7-u f iX. , 2011 , by and between Tc xas Rc,ei1A 4c, c a 4 /4r.;{'ct CA LLC , herein after 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: 'Tt x A' R octal h oars c 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 property 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: Riqht 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 tome by the City, the Owner shall provide the City with documentation identifying the material(s) removed, the quantity, and disposal destination. 3. 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 IN ,m"=•'°".�:� 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 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. IF TO CITY: City of Menifee 29714 Haun Road Menifee, CA 92586-6540 IF TO OWNER: '7-4,,Ai Izo.A'W"►C 60 yd 0L,+C16 "'.-,s Ls.'L L a u 'S ✓ %/ & K ` '/ 0 4,0 3— IN WITNESS THEREOF, the parties hereto have affixed their signatures as of the date first written above. CITY: OWNER: By: 1. '` By: Donald Allison, City Engineer / NAME Director of Public Works Title: T- x•i, j2,,rad aFM��-�«, CA, Lcc $/-*Texas Roadhouse HoldiVs LLC , By: The Roadlattae, I&. its MxwW By: Sheila C. Brown OWNER: General Ca mi, Corpo w Sect" By: Title: APPROVED AS TO FORM: Karen Feld, City Attorney ATTEST: Kathy Bennett, City'Clerk NAME NOTARY ACKNOWLEDGEMENTS ON FOLLOWING PAGE IN � �"m°`Wz- COMMONWEALTH OF KENTUCKY § COUNTY OF JEFFERSON § I, the undersigned, a Notary Public in and for said County in said State, hereby certify that Sheila C. Brown, whose name as General Counsel and Corporate Secretary of Texas Roadhouse, Inc, a Delawpre corporation, Manager of Texas Roadhouse Holdings LLC, a Kentucky limited liability company, the Manager of Texas Roadhouse of Menifee, CA, LLC, signed the foregoing Agreement, and who is known to me, acknowledged before me on this date, that being informed of the contents of said instrument, she, as such officer and with full authority, executed the same voluntarily for and as the act of said corporation. Given under my hand this the Jd day of July, 2011. Z-&AAWZ-�-- Notar-§Pub-0 — My commission expires: Pdft' &-09 at L&W KY �� wee 0Ct 17.E,�11 II�11NMtlI�I�II�IIIINII�NI��II�INI � "";�420023 � EXHIBIT "A" LEGAL DESCRIPTION OF LOT A PARCEL A AS SHOWN ON LOT LINE ADJUSTMENT NO. 4575 AS EVIDENCED BY DOCUMENT RECORDED AUGUST 4, 2003 AS INSTRUMENT NO.03-591532 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS BEING PORTIONS OF PARCEL NOS. 30 AND 31 IN PARCEL MAP NO. 22233 AS SHOWN BY MAP ON FILE IN BOOK 187 OF PARCEL MAPS, PAGE 9 THROUGH 14, INCLUSIVE, TOGETHER WITH PARCEL'A' AND A PORTION OF PARCEL'B' IN LOT LINE ADJUSTMENT NO. 4268 AS DESCRIBED IN INSTRUMENT NO. 2000-467983, RECORDED NOVEMBER 22, 2000, BOTH OF RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING ON THE SOUTHWEST CORNER OF SAID PARCEL'A' SAID CORNER BEING ALSO ON THE EASTERLY RIGHT-OF-WAY LINE OF HAUN ROAD AS SHOWN ON SAID PARCEL MAP NO. 22233; THENCE NORTH 890 53' 43" EAST ALONG THE SOUTH LINES OF SAID PARCEL W AND SAID PARCEL'B' A DISTANCE OF 205.11 FEET; THENCE CONTINUING ALONG THE SOUTH LINE OF SAID PARCEL'B', NORTH 8S° 23' 17" EAST A DISTANCE OF 54.48 FEET, THENCE LEAVING SAID SOUTH LINE NORTH 000 06' 17" WEST A DISTANCE OF 198.12 FEET; THENCE SOUTH 89° 53' 43" WEST A DISTANCE OF 156.15 FEET THENCE NORTH 620 30' 55" WEST A DISTANCE OF 24.13 FEET TO A POINT ON THE EASTERLY RIGHT-OF-WAY LINE OF SAID HAUN ROAD, SAID POINT BEING ALSO THE BEGINNING OF A NON -TANGENT CURVE CONCAVE WESTERLY HAVING A RADIUS OF 900.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 620 30' 55" EAST; THENCE SOUTHERLY ALONG THE ARC OF SAID NON -TANGENT CURVE AND SAID RIGHT-OF- WAY THROUGH A CENTRAL ANGLE OF 00" 46' 35" AN ARC DISTANCE OF 12.19 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE EASTERLY HAVING A RADIUS OF 800.00 FEET, THENCE CONTINUING SOUTHERLY ALONG THE ARC OF SAID TANGENT CURVE AND SAID RIGHT-OF-WAY THROUGH A CENTRAL ANGLE OF 150 33' 49" AN ARC DISTANCE OF 217.31 FEET TO THE SOUTHWEST CORNER OF SAID PARCEL 'A' AND THE POINT OF BEGINNING. IIIIII�uiuuiimuiimuiuiAi , A„�P. w,,��� LEGAL DESCRIPTION OF LOT B PARCEL B AS SHOWN ON LOT LINE ADJUSTMENT NO.4575 AS EVIDENCED BY DOCUMENT RECORDED AUGUST 4, 2003 AS INSTRUMENT NO. 03-591532 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEING PORTIONS OF PARCEL NOS. 30 AND 31 OF PARCEL MAP NO. 22233 AS SHOWN BY MAP ON FILE IN BOOK 187 OF PARCEL MAPS, PAGES 9 THROUGH 14, INCLUSIVE, TOGETHER WITH A PORTION PARCEL W OF LOT LINE ADJUSTMENT NO. 4268 AS DESCRIBED IN INSTRUMENT NO. 2000-467983, RECORDED NOVEMBER 22, 2000, BOTH OF RECORDS OF RIVERSIDE COUNTY, CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWEST CORNER OF PARCEL 'A' AS DESCRIBED IN SAID LOT LINE ADJUSTMENT NO.4268; THENCE NORTH 890 53` 43" EAST ALONG THE SOUTH LINES OF SAID PARCEL WAND SAID PARCEL'B' A DISTANCE OF 205.11 FEET; THENCE CONTINUING NORTH 85" 23' 17" EAST ALONG THE SOUTH LINE OF SAID PARCEL 'B' A DISTANCE OF 54.48 FEET TO THE POINT OF BEGINNING; THENCE LEAVING SAID SOUTH LINE NORTH 000 06' 17" WEST A DISTANCE OF 198.12 FEET; THENCE NORTH 890 53` 43" EAST A DISTANCE OF 359.30 FEET, MORE OR LESS, TO THE WESTERLY RIGHT-OF-WAY LINE OF INTERSTATE 215 AS GRANTED TO THE STATE OF CALIFORNIA PER DEED RECORDED OCTOBER 1, 1997, AS INSTRUMENT NO. 3585361 OFFICIAL RECORDS; THENCE SOUTH 140 56' 48" WEST ALONG SAID WESTERLY RIGHT-OF-WAY LINE A DISTANCE OF 197.24 FEET TO THE SOUTHEAST CORNER OF SAID PARCEL'B; THENCE LEAVING SAID WESTERLY RIGHT-OF-WAY LINE SOUTH 890 53,431, WEST ALONG THE SOUTH LINE OF SAID PARCEL'B' A DISTANCE OF 211.09 FEET; THENCE CONTINUING ALONG SAID SOUTH LINE SOUTH 850 23' 17" WEST A .DISTANCE OF 97.28 FEET TO THE TRUE POINT OF BEGINNING. 10 1111111111111111111111111111111111111111111111111111111 ,�"_•"�":� CL C—U LT. C, I g I Al"L. 9 ;R rigs P. NMI fjj;�jj ; i cm NI; CALIFORNIA•ACKNOWLEDGMENT ?a.'✓c%-�.'..r-cam_. ir-�av!T.rS,r�C%..%-.'.r--_Sr---cr...g,�tcr-,-.c.r-c�_crs�.per--\r-s�..r-,,^_g..r-.�_..,�..<r,-'�.�gr-s�.�S;:�S State of California County of On before me, blic,, Date Here Insert Name d Title of the Office personally appeared Name(s) of Sioner(s) JULIE WOODRUFF Commission # 1939215 Notary Public - California i San Diego County M Comm. ExPires M&y 30, 2015 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person(p) whose name( is/aO subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/hdr/tWiir authorized capacity(igo, and that by his/hof/thdir signature(s) 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 paragraph is true and correct. 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