Storm Water Management Facilities Maintenance Agreement 2005-0280303
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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
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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.
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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
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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
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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
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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
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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.
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