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Storm Water Management Facilities Maintenance Agreement 2008-0347281 ~-- ---- I . D~# 2008-0347281 , \ 111111\1111 \111\ 11\\\ 1111\ 11\1111111 \\\\\ 111\\ \1111 1\1111111\ \11\ 1111 I RECORDING REQUESTED BY JUN 27. 2008 1.22 PM I CITY OF POWAY OFFICI"L FIE CO F:C", ",.".1'1 [qEGO COUNT', F:ECORDEFI"" ,-iFFICE AND WHEN RECORDED MAIL TO' ~ 13F:EGUF:'1 ,I '-,r'AITH COUr'JTI F:EI-'uR[IEFI FW, [100 CITY CLERK PAGES: 10 CITY OF POW A Y ~ 11~11~~~~~~~~~~ml POBOX 789 POWAY. CA 92074 \I]IV' (THIS SPACE FOR RECORDER'S USE) STORM WATER MANAGEMENT FACILITIES MAINTENANCE AGREEMENT No Documentary Transfer Tax Due CostcoCar Wash 12155 Tech Center Dr Poway CA ( CUP 07-04 DR 03-13R ) This AGREEMENT for the maintenance and repair of certain Storm Water ManagementFacilities is entered into between Costco Wholesale (hereinafter referred to as "OWNER") and the CityofPoway (hereinafter referred to as "CITY") for the benefit ofthe 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, more particularly described in Exhibit "A" hereto (hereinafterreferred to as the "PROPERTY"), and has proposed that the PROPERTY be developed as a car wash facility and associated parking lot in accordance with applications for Tentative Mlp No. , Development Plan No. 03-I3R , Conditional Use Permit No. 07-04 . Grading Permit No. 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 Po way's Standard Urban Storm Water Mitigation Plan, Poway Municipal Code, Chapter 16, 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 stoml water runoff from the PROPERTY be managed by the use of the following Storm Water Management Facilities which are identified as "Best Managenmt Practices" or "BMP's" The precise location(s) and extent of the BMP's are indicated on the Exhibit I located inside WOMP dated July 2007 on file with CITY's Development Services Department as Costco Car Wash WOMP The manner and standards by which the BMP's must be repaired and mail1tained 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" 00- 0 14"- . . 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 ofthis Agreementto assurethatthe 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 BMPmaintenance which arc provided by law NOW, THEREFORE, for considerationof(a) CITY's approval ofthe above development applications and (b) the mutual 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 ofthe PROPERTY, to comply in all respects with the requirements of the SUSMP Ordinance with regards to the maintenanceofBMP's, and in particular agrees to perform, at its sole cost, expense and liability, the following "MAfNTENANCE 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 MAfNTENANCE ACTIVITIES at the required time, without request or demand from CITY or any other agency OWNER further agrees that "MAfNTENANCE ACTIVITIES" shall include replacement or modification of the BMP's in the event of failure. Replacement shall be withan 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) Ifthe failure ofthe BMP, in the judgment of the 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, priorto transferring ownership of any land on which any of the above BMP's are located, and also priorto transferring ownership of any such BMP, provide clear written notice of the above maintenance obligations associated with that BMP to the transferee. OWNER further agrees 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 BMPmaintenancc 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 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 ofthe 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 perform 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 ACTIVITIES. OWNER's obligation to pay CITY's costs of performing MAINTENANCE ACTIVITIES is a continuing obligation. 4 Grant of Easement to CITY. OWNER hereby grants to CITY.a perpetual easement over, under and across (.inseft either "all of the PROPERTY" or "that portion ofthe PROPERTY described in Exhibit "C"hereto") , for purposes of accessing the BMP's and performing any of thc MAfNTENANCE 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 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 tothe implementationofthis Agreementdesired 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 authorityto 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 no! 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 kind or character, including attorneys' fees and court costs (hereinaftercollectivelyreferred to as "CLAIMS"), related to this Agreement and arising either directly or indirectly from any act, error, omission or negligence of OWNER, OWNER'ssuccess'ors; 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 P ARTIESJrom a claim ifit is determined by a court of competent jurisdiction that such claim was caused by the sole negligence or willful 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 providcd by applicable law 7 Common Interest Developments. If the PROPERTY is developed as a "Common Interest Development" as defined in Civil Code section 135l(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 defined in Civil Code section 135l(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 MAfNTENANCE ACTIVITIES pursuant to this Agreement, and shall undertake . . all actions and efforts necessary to accomplish theMAlNTENANCE ACTIVITIES, including but not limited to, levying regular or special assessments against each member of the ASSOCIATION sufficient to provide funding for tile MAINTENANCE ACTIVITIES, conducting a votepfthe membership related to such assessments ifequired by law In the event insufficient votes have been obtained to authorize an assessment, the ASSOCIA nON 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 DECLARA nON 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 aright of any member or other person to alter, improve, maintain OIrepair any of the PROPERTY in any manner which would impair the functioning oftheBMP;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 Snccessors 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 easementgranted herein). It is the intent ofthe 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. Notwithstandingany otheiprovision 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 maintenanceofBMP'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 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 Irnger necessary to assure such maintenance. II Governing Law and Severability. This Agreement shall be governed by the laws of the State of California. Venue in any action related to this Agreementshall be in the Superior Court of the State of California, County of San Diego. In the event that any ofthe provisionsofthis Agreementare held to be ul1enforceableor invalid by any court of competent jurisdiction, the validity, and enforceabilityof the remaining provisions shall not be affected thereby ,- .. . . fN WITNESS WHEREOF, the II d this Agreement on the dates set forth hereinafter For Costco Wholesale: Date: s/z / u~ / / Its: SVP ('oNg7P-UC7/o N FocClTYOFPOWAY ~~/f) Date: ft:7/121o 8' Robe J Manis ~ t . Its: Director of DeveloptrCnt Services M:\engserv\eng fonns\Stonnwater.Maintenance Agreemen'iStom1 Water Facilities Agmt,doc . . . . State of JA.p.H.IN~!9N I I ss. > County of ~A/ ~ I I On this g,~day ofYhA:I( . ' 20lJB, before me personally appeared Au .14P.A'f~ to me known to be the Vice President of Construction of the corporation that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated that he was' authorized to execute said instrument and that the seal affixed is the corporate seal of said corporation. In Witness Whereof I have hereunto set my hand and affixed my official seal the day and year first above written. ,,,\\1\1\11, ....-,-, R e. III M. .- ~. i"f 'I ~~ ~~~~li',~~\ . =':= .~r.. ~,~'i ~ :: ':;~ '"\ ;..,: .~c:~-! I. ~ ~. f.'.' ":~., "<. . '; ~ ~CIJ,t',~ .,. ....,. - ~ ,:-"~_~ ti-~ ", ,! " .' r. ~ ~ ~",'~~, '~-rl:: 'l' ",I"i.",>~ ./ =- II --~ I,,", _ ,d':o,'';:- Ilii, ! WAS"\~...~...~ 11111\\\\\"'''' . . CALiFORNIA ALL.PURPOSE ACKNOWLEDGMENT ~~~~~~~~~..e<Y-~~~evy-~~ State of California } County of San Diego On J{)./V'E: 12, ZOO! before me, Phyllis Shinn, Notary Public Dale Here Insert Name and Title althe Officer personally appeared RM E>2T .j 1YJq/f/ 15 Name(s)oJ $igner(s} who proved to me on the basis of satisfactory evidence to be the personOO whose nameOO is/~ subscribed to the within instrument and acknowledged to me that Q'~~":";l he/~e/t% executed the same in his/l)er/ttilW authorized capacity(i~), and that by' his/~/tOOr signature~ on the instrument the person()(t, or the entity upon behalf of I NoIaIy PutllIO . CaIlfolIlla I which the person()) acted, executed the instrument. . Ian DIogo COIIIIly I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Place Notary Seal Above Signature OPTIONAL Though the information below is not required by law, il may prove valuable to persons relying on the document and could prevent fraudulent FemovaJ and reattachment of this form to another document. Description of Attached Document ,4I-1"r-iI1 ~Jf/r IAcl t I Tl Title or Type of Documen . M Document Date: MY 2 ,Z()()i> Number of Pages: . Signer(s) Other Than Named Above: At-I 111 ~;1 Yt-~ ( Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: o Individual o Individual o Corporate Officer - Title(s): o Corporate Olficer - Title(s): o Partner - 0 Limited 0 General o Partner - 0 Limited 0 General o Attorney in Fact . o Attorney in Fact . o Trustee Top of thumb here o Trustee Top 01 thumb here o Guardian or Conservator o Guardian or Conservator o Other' o Other' Signer Is Representing: Signer Is Representing: ~........~~ \;I~~~~~~~~~~~~~~~~~~~~~~~y. @2007National Notary ~ssocialion. 9350 De Solo AVe., PO, Box 2402 oChatswarth,CA 91313.2402owwwN8!1onalNotaryorg Item #5907 Reorder:CaflTolI-Free 1-800-876-6827 '. . . . Exhibit A A portion of parcel 4 per the City of Poway Parcel Map No 19453, filed in the Office of San Diego County Recorder April 1,2004 and BA 07 -06 - \ -' . " .- . . Exhibit 8 OPERATION AND MAINTENANCE The operation ond maintenance requirements for eoch type of BMP ore contained in the following sections. The owner, Costeo Wholesale, will be responsible for site design and source control BMP maintenance for the project site. The Citv of Poway is responsible for the maintenance of the extended detention basin. If a transfer of responsibility occurs, Costeo will notify the City will use the form included in Appendix 2 as a notice of transfer Store Monoger I Costeo Wholesale 1 21 55 Tech Center Dr Poway CA (858) 848-2450 POST CONSTRUCTION BMPs Post-construction BMPs ore to be mointoined in perpetuity Maintenance requirements for site design, source conirol, and treotment control BMPs are noted below It shall be noled that preventotive maintenonce such os removal of trash ond debris from the site will help ensure proper function of the BMPs. SITE DESIGN BMP RESPONSIBLE PARTY MINIMUM MAINTENANCE FREQUENCY CONSTRUCT STREETS, To be maintained ensure pr.oper SIDEWALKS, AND PARKING Costco Wholesale function of areas in terms of water TO MINIMUM WIDTHS aualitv To be maintained ensure proper PRESERVE NATURAL function of areas in terms of water DRAINAGE SYSTEMS Costeo Wholesale quality For example, preventing any grass clipping or landscoping moterial from enterina storm drain. PROTECT SLOPES AND To be maintained ensure proper CHANNELS Costco Wholesale function of areas in terms of water auolitv To be maintained ensure proper CONSERVE NATURAL AREAS Costeo Wholesale fu nction of a reos in terms of water ouolitv - .. '. : q . . . ,~ ',' . - I 'MINIMUM MAINTENANCE SOURCE CONTROL B_MP' RESPONSIBLE PARl'Y f,REQUEN~Y - , To be maintained in accordance with Non-Storm Water Discharges Costeo Wholesale City Industrial/Commercial NPDES requirements for illicit discharge inspections and renortina. Spill Prevention, Control and Verification of Spill Contingency Plans Cos/co Wholesale based on City Industrial/ Commercial Cleanup NPDES Inspection (frequency varies) Outdoor Loading/Unloading Costco Wholesale Any loading areas should be inspected and Cleaned on a monthlv basis. Covered under maintenance Waste Handling and Disposal Costco Wholesale requirements/guidelines of SC-4 j and SC-43. Street sweeping within the internal Parking/Storage Area Costco Wholesale roads and parking lot areas shall be Moinienance conducted on the normal Costco Site schedule. In conjunction with maintenance activities, verify that landscape design continues to function properly by adjUsting properly to eliminate Efficient Irrigation Costeo Wholesale overs pray to hardscape areas, and to verify that irrigation timing and cycle lengths are adjusted in accordance with water demands, given time of year, weather, and day or night time temperatures. Storm drain stencils shall. be inspected for legibility, at minimum, once prior to Storm Drain Signoge Costco Wholesale the storm season, no later than October 1 each year Those determined to be illegible will be re- stenciled as soon as possible. Car Wash shall be monitored on a Vehicle Wash Areas Costeo Wholesale continuous basis in order to ensure wash 'Water does not enter the storm ,drain. Sweep trash area at least once per Trash Storage Areas Costeo Wholesale month and before October I each year Maintain area clean of trash and debris at all times.