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Storm Water Management Facilities Maintenance Agreement 2005-0280303 . . --- - 8927 r 51> ' ,,"CO::y007:::" BY 111I1111"llIl~lllilllli 1111~WI~Ulill "mll~m~1111111 (\":.~ AND WHEN RECORDED MAIL TO APR 06 2005 11 10 AM "\ OFF!I.I',L RUIIP,l"" f'\ CITY CLERK . L:I,'".1'l [11EI~-iCI [:[Iurn IF-:EU IH['Er-f'~1 I ~~WE ~ CITY OF POWAY GRE,,"R, " '"III [Ii COllin, F:EI Ur:l'EF: '\ POBOX 789 FEE; IJ.IIIJ POWAY CA 92074 FoGE'" NO TRANS;ER TAX DUE i 1111111111111111111111111111111111111111111111111111111111111111111111111111111 :!O05-0280303 APN 317-540-35 & 36 STORM WATER MANAGEMENT FACILITIES MAINTENANCE AGREEMENT NO DOCUMENT TRANSFER TAX DUE DR 04-eS AND VARIANC~ 04-10 This AGREEMENT for the maintenance and repair of certain Storm Water Management Facilities is entered into between JERROLD A. HENNES (hereinafter referred to as "OWNER") and the City of Po way (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 WHEREAS, OWNER is the owner of certain real property located in the City of Po way, California, more particularly described in Exhibit "A" hereto (hereinafter referred to,as the "PROPERTY"), and has proposed that the PROPERTY be developed as ( DENTAL OFFICE in accordance with applications for Tentative Map No. N/ A , Development Plan No. DRO 4.- 0 S . Conditional Use Pennit No. N/A . Grading Permit No. G1481-04 which are on file with the CITY 1bis Agreement is required as a condition of approval for such development. WHEREAS, in accordance with the City of Po way's Standard Urban Storm Water Mitigation Plan, Poway Municipal Code, Chapter l6,'Division VI (the "SUSMP Ordinance"), the City of Poway Subdivision Ordinance, the City of Poway Zoning Ordinance, the City of Poway Grading Ordinance and/or other ordinances or regulations of CITY which regulate land development and urban runoff, OWNER has proposed that storm water runoff ,from the PROPERTY be managed by the use of the following Storm Water Management Facilities which are identified as "Best Management Practices" or "BMP's" The precise location(s) and, extent of the BMP's are indicated on the G~f.~~NG dated 1 /27/0 S n file with CITY's Development Services Departmentas G1 481 -04 The rnanner and standards by which the BMP'smustbe repaired and maintained in order to retain their effectiveness are as set forth in the Operation Maintenance Plan (hereinafter "O&M PLAN") which is attached hereto and incorporated herein as Exhibit "B" 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 C6-C:::LQCI . . 8928 arednaintamed, 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) ihemutual covenants set forth herein, IT IS HEREBY AGREED AS FOLLOWS. I Maintenance of Storm Water Management Facilities. 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 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 offailure. 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 failure of the BM]>, in the judgment ofthe CITY's Engineer indicates that the BMP in use is inappropriate or inadequate to the 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 of the above BMP's are located, and also prior to transferring ownership of any such BMP, provide clear written notice of the above maintenance obligations associated with that BMP to the transferee. OWNER further a!,'fees to provide evidence to CITY Engineer that OWNER has requested the California Department 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 that CITY 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 no representation that it intends to or will perform any of the MAINTENANCE ACTlVIT1ES, 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 perfonn the same and OWNER has failed 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 ACTlVmES. OWNER's obligation to pay CITY's costs of performing MAINTENANCE ACTIVITIES isa continuing obligation. . . 8929 4 Grant of Easement to CITY. OWNER hereby grants to CITY a perpetual easement over, under and acrossALL THE PRO!? .for purposes of accessing the BMP's and performing any of the MAINTENANCE ACTIVITIES specified in. Paragraph I 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 necessary or convenienHor such purposes. OWNER shall at all times maintain the PROPERTY so as to make CITY's access clear and unobsttucted. 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 Po way 13325 Civic 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 thai the amendment is consistent with the purposes of this Agreement as set forth above. 6 Defense and Indemnity. CITY shall not be liable for, and OWNER and its successors in interest shall defend and indemnifY 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 killd 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, without limitation,. claims caused by the concurrent negligent act, error or omission, whether active or passive of CITY PARTIES. OWNER shall 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 approval 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 defmed in Civil Code section I351(c) which will include membership in or ownership of an "ASSOCIATION" as defined in Civil Code section 135I(a), then the following provisions of this Paragraph 8 shall apply during such time as the PROPERTY is encumbered by a "DECLARATION" as defined in Civil Code section I35I(h), and the Common Area, as "Common Area" is defined in Civil Code section 135I(b), of the PROPERTY is managed and controlled by the ASSOCIATION (a) The ASSOCIATION, through its Board of Directors, shall assume full responsibility to . . 8930 perform the MAINTENANCE ACTIVITIES pursuant to this Agreement, and shall undertake all actions and efforts necessary to accomplish the MAINTENANCE ACTIVITIES, including but not liniited to, levying regular or special assessments against each member of the ASSOCIATION sufficient to provide funding for the MAINTENANCE ACTIVITIES, conducting a vote of the 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 the DECLARATION or California law to colIect 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 aright 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 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, uuit 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 responsibilities for installation or maintenance 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, constmction 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 and 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. II Governing Law and Severability. This Agreement shall be govemed by the laws of the State of . . 8931 Califorma. 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 Agreement are 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 F~OWNER. tt~/~ Date: '2---/6 -OJ Date: For CITY OF POW A Y Q / T}'fj/V~C ______ io-.-_______._ Date: 3_2;_05 U . . 8932 EXHIBIT "B" INSPECTION & MAINTENANCE SCHEDULE FOR ALL BMPs PREVENTATIVE MAINTENANCE AND ROUTINE INSPECTION TYPE Routine Measurement Measurement MAINTENANCE SITE-SPECIFIC BMP Action Indicator Frequency REQUIREMENTS ACTIVITY Land- Proper Less than 30 days prior to Re-seed or All slopes and scaping irrigation & 80% October 1 st each Re-plant. landscaped & Fertilizer coverage, no year check weekly Repair areas are to irrigation overspray for overspray and Irrigation have a shall be correct sprinkler system with-in minimum allowed heads to eliminate 5-days. coverage of oversorav 80% Trash Trash free and Daily inspection Remove trash All trash storage storage removal of silt and silt areas to be free areas Daily from trash and silt at all times Roof Trash free and Silt build up 30 days prior to Remove all All Roof drains drain remove silt of more than October 1 st each trash and silt to be free from 1" no trash year and weekly and repair any trash and silt during rain season. damage to and in good roof drains repair Bio-fiIters Trash free and Silt build up 30 days prior to Remove trash All bio-filters to removal of silt. of more than October 1 st each and silt. Do not be free from If water is 2" no trash, year and after allow a build trash and silt at standing more Exposed every storm up greater all times, grass than 72 hrs the soils, dead monitored with than 3" -repair area to be free bio-filter is vegetation, more than 0.5 inch and reseed from exposed ineffective. ponded of precipitation and exposed soil and water, and weekly during areas, maintained to excessive extended periods maintain grass proper height, vegetation wet weather height so as ponding of not be shorter water for more than 2" or than 48 hours higher than 5" not allowed. remove all ponded water weekly insoections Fossil Trash free and Silt build up 30 days prior to Remove trash All Fossil-filters Filter removal of silt of more than October 1 st each and silt. and inlets to be and (see year and weekly Replace Fossil free from trash Inlets manufactures during rain season filters Annually and silt at all specifications 30 days prior times ) to October 151 Storm Legible and in Damaged 30 days prior to Repaint and All stenciled Drain good repair leUers or October 1 st each repair signs. signs Stencils damaged year and semi- sian post annuallv '. . 8933 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT I State of californ~a :I/7V /\ } ss. County of 2); ul/ (t?) , On #lb~r beforerne, clU{~'of ,,' personally appeared Cfel1rfW A. Hb1'lf! I Name(s)ofSlgner(s) o personally known to me ~d to me on the basis of satisfactory J evidence to be the person('\r whose name~are .1 , _ _ _ _ _ -- - - - - -I subscribed to ttl\,;itljiq. instru;;;~and ~ JUUE KAY LAMB . acknowledged to me)b<l.t ~she/they executed . commISSiOn 11368512 the sa~ in ~er/their ~thorized I .- Notary Public ,California ~ capacity I ), and that by ~er/their . SOn DIego County signature n the instrument the perso~, <;> , Mvcomm.ExplreSAug6, 2006 the entit on behalf of which the pe(so~) acted, executed the instrument. ., , ) , ) 1 Though the information below is not required by law, it may prove valuable to persons relying onthe document and could I fraudulent removal and reattachment of this form to another document. ,] :' Description ot Attached Document ' ,I Title or Type of Document: I Document Date: Number of Pages: '1 .1 Signer(s) Other Than Named Above: ., .) Signer's Name: I o Top ot thumb here 1 o o Partner - Limifed o Attorn ,in,Fact o Trustee o Guardian or Conservator o Other .1 Signer is Representing: @1999 National Nolary Association' 9350 De Solo Ave., P_O. Box 2402' Chalsworth. CA 91313-2402' wwwnalionalnOlaryorg Prod. No. 5907 Reorder: Call Toll Free 1-8{)(}.876 6827