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Storm Water Management Facilities Maintenance Agreement 2007-0083003 ; . ['C: It '-'('1(\7,(-H)"':'Q()'::> "-_ '.' '__' I J ,_ .....). '_" ,_) , I Il!!!!il i!lliiil lIiil II! 1 I lilll 111111111111111 111111111111111 !IIIIIII RECORDING REQUESTED BY. Fi':.B 06 2007 11.24 AM CITY OF POWAY IYFiu.l' r-:it.LCW:LI': 6069 'j [.;1[_1;:1 LI !ur'~ I, l-:EI.ui7:l.'EFi" I WI-IU:' AND WHEN RECORDED MAIL TO _i,-;~i;I:IFrl I ;i,1ITH i iillr'IT1 f~ELUHlIEf: I"ll '. ~'.:Ilili CITY CLERK f.':'.:;C'- 0 CITY OF POWAY '1m! IIlilll!ii 1I1~~i~~ I~I i1llllillllllllllllllliii 11m 1111111111111 I POBOX 789 ~ POWAY, CA 92074 . - 083003 \"r-- - (THIS SPACE FOR RECORDER'S USE) APN 322-011-08 STORM WATER MANAGEMENTFAGILlTIES MAINTENANCE AGREEMENT (MDRA 06-36) This AGREEMENT for themaintElnal1ce and repair of certain Storm Water Management Facilities is entered into between Lucidi Family limited Partnership, a California limited Partnership (hereinafter referred to as "OWNER") and the.City of Poway (hereinafter, referred to as "CITY") for the benefit of the CITY, the OWNER, the successors in interest to the CITY or the OWNER, and the public generally WHEREf,\S, OWNER is the owner of certain real property located in the City of Poway, California, more particularly described. in Exhibit "A" hereto (hereinafter referred to as the "PROPERTY"), and. has proposed that the PROPERTY be developed as asinglefamilyresidence in accordance with an application for Minor Development Review Application No 06-36, which is on file with the CITY This Agreement is required as a condition of approval for such development. WHEREAS, in accordance with the..City of poway'sStandard Urban Storm Water Mitigation Plan, POW?y Municipal Code, Chapter 16, Division VI (the "SUSMP Ordinance"), the City of Poway Subdivision Ordinance, the City o(PowayZoning Ordinance, the City of Poway Grading Ordinance and/or other ordinances or regulations of CITYwhichregulatedand development and urban runoff, OWNER has proposed that stonn water runoff from the PROPERTY be managed by the use ofthe following Storm Water Management Facilities which are.identified as "Best ManagementPractices" or "BMP's'" Vegetated swales along the periphery of the residence. The precise location(s) and extent of the BMP'sare indicated~on the site plans dated August 11, 2006, on file with CITY's Development Services Department as.MDRA 06-36 The manner and standards by which the BMP's muslbe repaired;and'malntained inorder to retain their effectiveness are as setforth.inthe.Operation and MairitenancePlan (hereinafter "O&M PLAN") dated AugLlst 11. 2006, which is on .file with CITY'S DevelopmentServices Department. WHEREAS, OWNER's representations that the BMP's'will.be maintained have been relied upon by CITY in ,approving OWNER's development applications. It is the purpose of this Agreement to assure that the BMP's are maintained, by creating obligations which are enforceable against the OWNER and the OWNER's successors in interest in the PROPERTY It is intended that these O"l--oO- . . 6070 , obligations be enforceable notwithstanding other provisions related to BMP maintenance which are provided by law NOW, THEREF9REi for consideration of (a) CITY's ,approval of the above development applications and'(b) the mutual covenants set forth herein, IT IS HEREBY AGREED AS FOLLOWS 1 Maintenance of Storm lII(ater ManagementFacilitiesc OWNER agrees, for itself and its successors in interest, to all or any portion of the PROpERTY, to comply in all respects with the requirements of the SUSMPOrdinance with regards to the maintenance ofBMP's, and in particular agrees tg ,p~rform, at its sole cost" expense and liability, the .following "MAINTENANCE ACTIVITIES'" all inspections, .c1eaning, repairs, servicing, maintenance and other actions spe(;ified in the O&M PLAN, with resped to all oftheBMP's listed above, at the.times and in themanl'lerspecifiedin theO&M PLAN. OWNER shall initiate, perform and complete all MAINTENANCE ACTIVITIES at the, required time, without request or demand from CITY or any'otheragency OWNER .further agrees that "MAINTENANCE ACTIVITIES" shall include replacement or modificationofthe BMP's in the event of failure. Repl(lcement shall be with a'ri iaehtical type, size and modei of BMP, except that (a) The CITY's Engineermay authorize substitut!ol1 of an alternative BMP if he or she determines thatit will funCtion as well as the failed BMP; and (b) If the failure of theBMP, in the judgment of the CITY's Engineer indicates that the BMP in use is inaRpropriate or inadequate tcrthe circumstances, the BMP must be modified or replaced with an upgraded BMP to prevent future failure in the same or similar circumstances. 2. Notices. OWNER further agrees that it shall, prior to transferring ownership of any land on which any ofthe above,BMP'sare located, arid also prior to transferring ownership of any suchBMP, provide clearwiitten,noticeofthe abovelJ1aintenance obligations associated with that BMP to thetransfetee. OWNERfurther agrees to provide evidence to CITYEngineer that OWNER_has requested the California Departmentof Real Estate to include in the public report issued for the develoRment of the PROPERTY, a notification regarding the BMP maintenancerequiremeritsdescribed herein. 3. CITY's Right to Perform Maintenance. It is agreed'that CITY shall have tbe right, but not the obligation, to elect to. perform any or all of the MAINTENANCE ACTIVITIES if, in the CITY's sole judgment, OWNER has failed to perform the same It is recognized and underst06dthat the CITY makes'no representation that it intends to orwill perform any of the MAINTENANCE ACTIVITIES, and any election by CITY to perform any of the MAINTENANc;E ACTIVITIES, shall in no way relieve OWNER of its continuing maintenance obligations under this agreem",nt.. I[ (~ITY E'!.I~cts to perform any of the MAINTENANCE ACTIVITIES,it'isunderstood thaLCITY shall be deemed to be acting as the agellt of the OWNERandsaidwork shall be withoutwarranty or.representation by CITY astosafety or effectiveness,shall be deemed to be,accepted by OWNER "as is", and shall be covered by OWNER's indemnity provisions below If CITYperforins any of the MAINTENANCE Apl~ITIES, after CITY has demanded that OWNER,pEl,rformthesame and OWNER has failed todo so within a reasonable time stated in the, CITY's demand, then OWNER shall pay all of CITY's costs incurred in performing the MAINTENANCE ACTIVITIES. OWNER;s. obligation to pay CITY's costs of performing MAINTENANCE ACTIVITIES is a continuing'obligation. . . 6071 4 Grant of Easement to CITY. OWNER hereby grants to CITY a perpetual easement over, under and across all of th~_ PROPERTY, for purposes of accessing the BMP's and performing any of the MAINTENANCE ACTIVITIES'specifi~d in Paragraph 1 above. CITY . .. - shall have the right, at any time and without prior notice to OWNER, to enter upon any part of said area as may be nece~~ary or convenient for such purposes. OWNER shall at all times maintain the PROPERTY so as to make CITY's access clear and unobstructed. 5. Administration of Agreement for CITY CITY hereby designates its Engineer as the officer charged with responsibility and authority to administer this Agreement on behalf of CITY Any notice or communication related to the implementation of this Agreement desired or required to be delivered to CITY shall be addressed to. City Engineer City of poway 13325 Civic Center Drive Poway, CA 92064 Ihe City Engineer is also granted authority to enter into appropriate amendments to this Agreement on behalf of CITY, provided that the amendment is consistent with the purposes of this Agreement as set forth above. 6. Defense and Indemnity. CITY shall not be liableJor, and OWNER and its successors in interest shall defend and jndemnify CITY and the employees and agents of CITY (collectively "CITY PARTIES"), against any and all claims, demands,liability, judgments, awards, fines, mechanic's liens or other liens, labor disputes, losses, damages, expenses, charges or costs of any, kind or character, including attorneys' fees and court costs (hereinafter collectively referred to as "CLAIMS"), related to this Agreement and arising either directly or indirectly from any act, error, omission or negligence of OWNER, OWNER's successors, or their contractors, licensees, agents, servants or employees, including, withouflimitation, claims caused by the concurrent negligent act, error or omission, whether active or passive of CITY PARTIES OWNERshall have no obligation, however, to defend or indemnify CITY PARTIES from a claim if it is determined by a court of competent jurisdiction that such claim was caused by the sole negligence or willfull misconduct of CITY PARTIES. Nothing is this Agreement, CITY's ap'p-roval of the development application or plans and specifications, or inspection of the work, is intended to acknowledge responsibility for any such matter, and CITY PARTIES shall have absolutely no responsibility or liability therefore unless otherwise provided by applicable law 7 Common Interest Developments. If the PROPERTY is developed as a "Common Interest Development" as defined in Civil Code section 1351 (c) which will include membership in or ownership of an "ASSOCIATION" as defined in Civil Code section 1351(a), then the following provisions of this Paragraph 8 shall apply during such time as the PROPERTY is encumbered by a "DECLARATION" as defineif ih Civil Code section 1351 (h), and the Common Area, as "Common Area" is defined in Civil Code section 1351(b), of the PROPERTY is managed and controlled by the ASSOCIATION: (a) The ASSOCIATION, through its Board of Directors, shall assume full responsibility to perform the MAINTENANCE ACTIVITIES pursuant to this Agreement, and shall undertake all actions and efforts necessaiy to accomplish the MAINTENANCE ACTIVITIES, including but not limited to, levying regular or special assessments against each member' of the ASSOGIA TION sufficient to provide funding for the MAINTENANCE ACTIVITIES, conducting a vote of the membership related to such . . 6072 assessments if' required by law In the event. insufficient votes have been obtained to authorize 'an assessment, the ASSOCIATION shall seek authority from a court of competent jurisdiction for a' r.educ<ed percentage of affirmative votes necessary to authorize the assessment, re-conducting the vote of the membership in order to obtain the votes neces?ary to authorize an assessment, and the ASSOCIATION shall take all action authorized by the DECLARATION or California law to collect delinquent assessments, including but not limited to, the recording and foreclosure of assessment liens (b) No provision of the DECLARATION, nor any other governing document bf the ASSOCIATION or grant of authority to its members, shall grant or recognize a right of any member or other person to alter, improve, maintain or repair any of the PROPERTY in any manner which would .impair the functioning of the BMP's to manage drainage or stormwater runoff In the event of any conflict between the terms of this Agreement and the DECU\RA TION or other ASSOCIATION governing documents, the provisions of this Agreement shall prevail. 8 Agreement Binds Successqrs and Runs With the PROPERTY It is understood and agreed that the terms, covenants and conditions herein contained shall constitute covenants running with the. land and shall be binding upon the heirs, executors, administrators, successors and.assigns of OWNER.andCITY, shall be deemed to be for the bel;lefitof all persons'owning any interest in the PROPERTY (including the interest of CITY or its successors in the easement granted herein) It is the intent of the parties hereto that this Agreement may be recorded and shall be binding upon all persons purchasing or otherwise acquiring all or any lot, unit of other portion of the PROPERTY, who shall be deemed to have consented to and become bound by all the provisions hereof. 9 OWNER's Continuing Responsibilities Where Work Commenced or Permit Obtained. Notwithstanding. any other provision of this Agreement, no transfer or conveyance of the PROPERTY or any portion thereof shall in any way relieve OWNER of or otherwise affect OWNER's responsibilities for installation or maintenance of BMP's which may have arisen under the ordinances or regulations of CITY referred to in Recital B above, or other federal, state or CITY laws, on account of OWNER having obtained a permit which creates such obligations or having commenced grading, construction or other land disturbance work. 10 Amendment and Release. The terms of this Agre~ment may be modified only by a written amendment approved and signed by the City Councilor the, CITY Engineer acting on behalf of CITY and by O\l\(NEI3 or 'OWNER's successor(s) in interest. This Agreemeht may be terminated and OWNER ,ar:dthe PROPERTY released from the covenants set forth herein, by a Release which CITY may execute if it determines that another mechanism will assure the .ongoing maintenance of the BMP's or that it is no longer necessary to assure such mainienance. · · 6073 . 11 Governing Law and Severability. This Agreement shall be governed by the laws of the State of California. Venue,inanyaclionJelated to this Agreementshall be in the Superior Court of the State of California; County ,of San, Diego. In the event that any of the provisions of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, the validity, and enforceability of the remaining provisions shall norbe affected thereby IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth hereinafter For OWNER: Date: / ktJ!o 7 / / For CITY OF POWAY. ! &~ L 130/07 . ':4 ,'/L.------ Date: Frank Casteleneto . . 6074 ,CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT State of California County of San Diego On J;;)//-rJlJeJl 30,2 Of) 1 before me, Phyllis Shinn, Notary Public Date f!:. ~ ' Name and-Title of Officer (e,g., Jane Doe, Notary Public") personally appeared!(/) It/j( /5;1:/.[// en , , Name{s)01 Slgner(s} ~erSOnallY known to me - OR - 0 proved to me on the basis of satisfactory evidence to be the person(~ whose name~ is/a~ subscribed to the within instrume~t and acknowle ged to me that he~/t~ executed the same in his/~tMr,authorized capac'ty(~, and tha~ ~ - - - - - - - - - - - - ~ hisll}l0t%r signature~on the instrument the person , ~ C PHYlliS SHINN or the entity upon behalf of which the personQl1. acted, _ ommlsslon # t 450304 . : ~ . _,,; Nolary Public. CaHfornla i executed the Instrument. j' San Diego County f MyCamm. ExplnI$ Nov 9, 2007 WITNESS my hand and official seal. - - - - - - - - - - - - oil !lL . :;;:tflvA) I Signalureof Notary Public OPTIONAL Though the information below is not required'by Jaw, it may prove valuable to persons relying on the document and could prevent fraudulent'remova/land reattachment of this form to another document. Description of Attached Document Title or Type of DocumentSfJ,.{'JW WA12:.:f<~6[/il fArrfAc 1 L 117 C) (J1q / j,/T[-'-,AJ/j;)C t.- f1 (i1:. EX /111 C I 6- Document Date: J-)O---1). Number of Pages: Signer(s) Other Than Named Above: JD/; E///I 9 LIACf 'pi Capacity(ies) Claimed by Sigher(s) Signer's Name: Signer's Name: o Individual o Individual o Corporate Officer o Corporate Officer Title(s): Title(s): o Partner - 0 Umited 0 General o Partner,- DUmited 0 General o Attorney-in-Fact o Attorney'in-Fact o Trustee .0 Trustee o Guardian or Conservator RIGHT THUMBPRINT o Guardian or Conservator RIGHT THUMBPRINT OF SIGNER _ OF SIGNER o Other' Jap of thumb here d Other' Top of thumb here Signer Is Representing: Signer Is Representing: -...._- e 1994' Nationsi' Notary Assoc'iation. 82-36"Remmet Ave.,P.O. Bol(71e4 . Canoga Pari<, 6A91309:71&4 Prod. No. 5907 Reorder: Cali Toll-Free 1-800-876-6827 . . 6075 CALlFORJ<lI1l,ALL.PURPOSE ACKNOWLEDGMENT State of California County of San Diego onJA,1Ii1~47(!Y --.50, ZOO 1before me, Phyllis Shinn, Notary Public personally appeare:" ~(51;';; /I {; 1 [t C I J N7e >cd Title of Offie" Ie g, 'J,,, Do>, No"~ Poblie") Name(s) of Signer(s) o personally known to me - OR -"5Lproved to me on the basis of satisfactory evidence to be the person(~ whose name~isl~ie. subscribed tq the within instrument and acknowledged to me that helsfle>/tI)ey executed the same in hislh!irlth)9ira:ut~orizedcapacity(i~), and that by ~ - - - - - - - - - - - - ~ hisl~erlt~!r signature(~ on the instrument the pe!son~ ~'_'.' C PHYl. .. L1SSH. I.NN,.. or the entity upon behalf of which the personC~\ acted, _ .. ommllslon#1450304 . i - . "'<. ! ... Nolary Public " Cauroriila j executed the Instrument. j .' San DIego Countv f . MyComm.EiplreoNOv9,2001 WITNESS my hand and official seal. -- .- -- -- - .- -- -- -- -- -- -- '1'" J Q~/ Lt ,1) / ~t.; .J!v ~, ,-Y '7 V7 o Signature of Notary Public OPTIONAL Though the information'below is not'required,bylaw,' it may prove valuable to persons refyi(lg on the document and could prevent fraudulent rf!moval and reattachment of this form' to another document. Description of AUached Document Title or Type of Document:...<fl//ifj,4JEt<.Mft-lJl;t?I1C;1.11--fAt:lL 117 ~ iJ!l1)11M/I1j!~t- " c:; (2 t:?; /11 e>4J7 - ( ^ Document Date: /- 30-- D 7 Number of Pages: Lf' Signer(s) Other Than Named Above:F ;t'41'1 K ():; :5rr L t7l/2:,-/7.) Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: o Individual 0 Individual o Corporate Officer 0 Corporate Officer Title(s): Title(s): o Partner - 0 Limited 0 General 0 ,Partner - 0 Limited 0 General o Attorney-in-Fact 0 Attorney-in-Fact o Trustee 0 Trustee . AIGHTTHUMBPRINT. RIGHT THUMBPRINT o Guardian or Conservator OF SIGNER 0 Guardian or Conservator OF SIGNER D Other" Top of thumb'here- 0 Other" Top of thumb here Signer Is Representing: Signer Is Representing: C 1994 National Notary Association. 8236 Remmet A~e., P.O. Box 71"84 . 9.aOOga Park, ~A~1309-7'1B4 Prod. No. 5907 Aeorder: Call Toll-Free 1-800-876-6827 . , . . ~ 6076 EXHIBIT A Parcel 3 of Parcel Map No. 18327, in the City of Poway, C.ounty of San Diego, State of California, filed in the Office of the County Recorder of San Diego County, August 20, 1999.