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.