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Storm Water Management Facilities Maintenance Agreement 2005-0939606 1; - -' . .' . ; ; DOC #. 2005-093960f=, 17966 11111111111111111111111111111111l1li1111111111111111111111111111111111 RECORDING REQUESTED BY OCT 28 2005 2:39 PM CITY OFPOWAY IJFFICl.u,L FrEI-nRCI': ':~,.uJJ CilECil-II-DIIf-H I riEI-CiFi[IER"; i IF,=ICE AND WHEN RECORDED MAIL TO bF:EI~[IF:'1 ,I ';r.,.1ITrl cour'n I RECCIFoDEF: FEE', IHI[I F'ul'lE'- ,-, CITY CLERK n '~~ CITY OF POWAY 1~~~I~~~~~~~~~~ml POBOX 789 POWAY, CA 92074 ,2005,0939606 (f' NO TRANSFER TAXDUE p~ (THIS SPACEF:OR RECORD!;;R:S.USE)- ~ APN 317-281-09 STORM WATER MANAGEMENt FACILITIES MAINTENANCE A~REEMENT NO DOCUMENT TRANSFER TAX, DUE (G1466-04) This AGREEMENTfor the:maintenance@nd repair of certain St~m WaterManagement FaCilities is entered into between W.H. Pomerado, LLC, a California Limited Liability Company (hereinafter ,- - -.- ..-, referred toas "OWNER") and the City of Po way (hereinafter referred toas "CITY") for the benefit of the CITY, the OWNER, the !successors in interest to the CITY or ,the OWNER, and the public generally WHEREAS, OWNER is the owner of certain real property located in the City, of Poway, California, --~. ,- - <~.. -; nioreparticularlydescribed iii Exhibit"A" hereto (hereinafteHeferre.d to as the "PROPERTY"), and has proposed that the PROPEI3TY be developed as two. multHenant industrial buildings in accordance withapplicationsJor DevelopmentReview No 94'9;1"lrld Grading PermitNoG1466-04, which are 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's Standard.Urban Storm Water Mitigation Pian, Poway Municipal Code, Chapter 16, Division VI (the "SUS[lliPOrdinance")i the City of Poway Subdivision. Ordinance, the City ofpoway Zoning Ordinance, the City of Poway Grading Ordinance and/or other ordinances or regulations of CITY which regulate land aevelopment and urban.runoff OWNER h~sproposed that storm:water runoff from the PROPERTY beman aged by the use of the following,StormWater Management Facilities which are identified as "Best Management Practices" or "BMP~s" Parking lots, lG\ndscapeareas and banks, trash storagE! a[,e~s, loading areas, roof runoff controls, irrigation system, vegetated swales, and catch basin filtration system Thepreciselocatio[1.(s)Ginq extent.oftheBMP'sare indicated on the grading plans dated September 13, 2004, on file witll CITY:s Development Services Department as G1466-04 The manl}er and standards by which:the'BMP:s mustbe repaired and maintained,in'orderto retain their effectiveness are,as seUorthin tl1eQperat[on.an,q lII!aintenance Plan (herElinafter"O&MPLAN") dated August 24, 2004, which is on file with CITY'S Development Services Department. WHEREAS, OWNER,s representations that the BMP'sw~l.bem,Gli.ritainedhave been relied upon by CITY in approving OWNER's development applications. It is the purpose of this Agreementto o:,-L~ lp .' 7 . . 17967 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 obligations be enforceable notwithstanding other provisions related to BMP maintenance which are provided by law NOW, THEREFORE, 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 Water Management Facilities. OWNER agrees, for itself and its successors in interest, to all (Jr any portion of the PROPERTY, to comply in all respects with the requirements ofthe SUS~P Ordinance with regards to the maintenance of BMP's, and in particular agrees to perform, at its sole cost, expense and liability, the following "MAINTENANCE ACTIVITIES'" all inspections, cleaning, repairs, servicing, maintenance and other actions specified in the O&M PLAN, with respect to all'of the BMP's listed above, at the times and in the manner specified in the O&M PLAN. OWNER shall initiate, perform. and complete all MAINTENANCE ACTIVITIES at the required time, without request or demand from CITY or any other agency OWNER further agrees that "MAINTENANCE ACTIVITIES" shall include replacement or modification of the BMP's in the event of fa~ure. Replacement shall be with an identical type, size and model of BMP, except that: (a) The CITY's Engineer may authorize substitution of an alternative BMP if he or she determines that it will function as well as the failed BMP; and (b) If the fa~ure of the BMP, in the judgment of the CITY's Engineer indicates that the BMP in use is.inappropriate or inadequate tb,the circumstances, the BMP must be modified or replaced with an upgraded BMP to prevent future.fa~ure in the same or similar circumstances. 2. Notices. OWNER further agrees that it shall, prior to tranj>ferring ownership of any land on which any of the above BMP's are located, and also prior'to transferring ownership of any such BMP, provide clear written notice of the above mai[ltenance obligations associated with that BMP to the transferee. OWNER further agrees to provide evidence to CITY Engineer that OWNER has requested the California Departm'ent of Real Estate to include in the public report issued for the development of the PROPERTY, a notification regarding the BMP maintenance requirements described herein. 3. CITY's Right to Perform'Maintenance. It is agreed thatCITY shall have the 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 understood that the CITY makes norepresentation.that itintends to or will perform any of the MAINTENANCE ACTIVITIES, and any election by CITY to perform any of the MAINTENANCE ACTIVITIES, shall in no way relieve OWNER of its continuing maintenance obligations under this agreement. If CITY elects to perform any of the MAINTENANCE ACTIVITIES, it is understood that CITY shall be deemed to be acting as the agent of the OWNER and said work shall be without warranty or representation by CITY as to safety or effectiveness, shall be deemed to be accepted by OWNER "as is", and shall be covered by OWNER's indemnity provisions below If CITY performs any of the MAINTENANCE ACTIVITIES, after CITY has demanded that OWNER perforf'(1 the same and OWNER has faiied to do 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 - " . . 17968 MAINTENANCE ACTIVITIES is a continuing obligation. 4 Grant of Easement to CITY. OWNER hereby grantsto CITY a perpetual easement over, under <lnd 'across all of the PROPERTY, for purposes of accessing the BMP's and performing any of the MAINTENANCE ACTIVITIES specified in Paragraph 1 above. CITY shail have the right, at any time and without prior notice to OWNER, to enter upon any part of said area !is may be necessary or convenient for such purposes. OWNER shail at ail 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 shail be addressed to. City Engineer City.of Poway 13325 Givic Center Drive Poway, CA 92064 The City Engineer is also granted authority to enter into appropriate amendments to this Agreement on behalf of, CITY, provided thatthe amendment is consistent with the purposes of this Agreement as'set'forth above. 6. Defense and Indemnity. CITY shail not be liable for, and OWNER and its successors in interest shail defend and indemnify CITY and the employees and agents' of CITY (coilectively "CITY PARTIES"), against any and ail claims, demands, liability, judgments, awards, fin'es, 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 coilectively 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, without limitation, claims caused by th~ concurrent negiigent act, error or omission, whether active or passive of CITY PARTIES. OWNER shail 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 wiilfuil misconduct of CITY PARTIES. Nothing is this Agreement, CITY's approvi'li 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 shail have absolutely no responsibility or Iiab~ity 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 wiil include membership in or ownership of an "ASSOCIATION" as defined in Civil Code section 1351(a), then the foilowing provisions of thisPiuagraph 8 shail apply during such time as the PROPERTY is encumbered by a "DECLARATION" as defined in 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 controiled by the ASSOCIATION: (a) The ASSOCIATION, through its Board of Directors, shail assume fuil responsibility to perform the MAINTENANCE ACTIVITIES pursuant to this Agreement, and shail undertake ail actions and efforts necessary t(l accomplish the MAINTENANCE ACTIVITIES, including but not limited to, levying regular or special assessments . . 17969 against each member of the ASSOCIATION sufficient to provide funding for the MAINTENANCE ACTIVITIES, conducting avote ofthe membership related to such 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 reduced, percentage of affirmative votes necessary to authorize the assessment, re-conducting the vote of, the membership in order to obtain the votes necessary to authorize an assessment, and the ASSOCIATION shall take all action'authorized by tlie 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 of 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 DECLARATION or other ASSOCIATION governing documents, the provisions of this Agreement shall prevail. 8. Agreement Binds Successors 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 and CITY, shall be deemed to be for the benefit of all persons owning any interest in ~he 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 or 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 responsib~itiesfor installation or maintenainc;e.ofBMP'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 Agreement may be modified only by a written amendment approved and signed by the City Councilor the CITY Engineer acting on behalf of CITY l3_nd by'OWNER or OWNER's successor(s)in interest. This Agreement may be terminated and OWNER and the 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 maintenance. / / / / / / / . . 17970 . 11 Governing Law and Severability. This Agreement shall be governed by the laws of the State of California. Venue in any action related to this Agreement shall be in the Superior Court of the State of California, County of San Diego. In the event that any of the provisions of this Agreementare held to be unenforceable or invalid by'any court of competent jurisdiction, the validity, and enforceability of the remaining provisions shall not be affected thereby IN WITNESS WHEREOF, the parties have executed this, Agreement on the dates set forth hereinafter W H. Pomerado, LLC A California limited liability company By Its Manager' Hamann Properties, Inc. A California corporation Date: '1hO/OD Date' '1/30 / ()~ Date: I i)/Jo)" . . 17971 CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT ~~~~~~~~~~~~~~~~~~~~~ State of California } ss. . County of S~~ /(hLc- On q/~olr;S , before me, L.C; A-G~IY\ Date cre...1&~ c ~OHiCef(e.g., JaneDoe,Nota personally appeared t'Ia.IV.t' " <I- bv~ Name(s) ofSigner{s) It:9Jersonally known to me D proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) illfare subscribed to the within instrument and acknowledged to me that ha4;AQlthey executed the same in h isfheTI1hei r L. E. RICHARDSON ~ authorized capacity(ies), and that by I,i,/I,t:,/their COMM. II 1515171 lil signature(s) on the instrument the person(s), or the NOTARYPUBUC-CAUFORNIA entity upon behalf of which the person(s) acted, SAN DIEGO COUNTY 0 executed the instrument. COMM. EXP. SEPT. 23. 2008'" \.. Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below. is nqt required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: o Individual o Individual o Corporate Officer - Title(s): o Corporate Officer - Title(s): o Partner - 0 limited 0 General o Partner - 0 Limited 0 General o Attorney in Fact Top ofthumb here o Attorney in Fact Top of thumb here o Trustee o Trustee o Guardian or Conservator o Guardian or Conservator o Other' o Other' Signer Is Representing: Signer Is Representing: ~~V~~~~~~~~~~~ lCI2004 National Notary Association. 9350 De Solo Ave., P,O. Box 2402. Chatsworth, CA 91313-2402 Item No. 5907 Reorder: Call TolI,Free 1-600-676-6827 . . CALIFORNIA ALl.PURPOSE ACKNOWL~DGMENT California 17972 State of County of San Diego On .fJL..1t.6E2i. / Z 2 ~tJ before me, Phyllis Shinn, Notary Public D"e) J// - N,m"" T,tI, of om,., 1'.9" 'J", Do., No,",\, P'''lo') personally appeared IAlL/:"'-? i rz- , Name(s)of Signer(s) ~perSOnallY known to me - OR -!J 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/s)fe/ti)(ly executed the sanie in his/H)WthlWauthorized capacity(i~, and that by his/h)lr/th){r signature~ on the instrument the person(~, . a -.... ,,,"",,m, "P,,o,","" w";" """"'"1i'I ,", . c. . . Commission II 14!0S04 . executed the instrument. < . . Notary PublIc . C~ ~. . - j San ~ CoIrIIy l _ _ _ ~~m:.~~,9~2~7 Though the information below. is not required by law,' it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form. to another document. Description of Attached Document Title or Type of Document Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Slgner(s) Signer's Name: Signer.'s,Name: o Individual o Individual o Corporate Officer o Corporate Officer Title(s): Title(s): o Partner -n Limited [] General o Partner - [] Limited 0 General o Attorney'in-Fact o Attorney"in-Fact o Trustee o Trustee o Guardian or Conservator . o Guardian or Conservator o Other' Top of thumb here o Other' Top"cit thumb here Signer Is Representing: Signer Is Representing: C 1994 National Notary Association. 8236 Remmel Ave., -P:O. Box 71B;. Canoga Park, CA 91309.7184 Prod. No. 5907 Reorder: Call Toll-Free 1-800--876-6827 - - - -.- -- -- ~. .' 4~__ - .~~ -~- - ........ .,..- .. .--- -' -. - - --... -. - ~--. .- --- .. . ' ' . Cj . . 17973 EXHIBIT A Lot 92 of Tract Map. No 12572, in the City of Poway"County oi.San Diego, State of California, filed in the Office of the County Recorder of San Diego Cbunty, February 28, 1990.