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Storm Water Management Facilities Maintenance Agreement 2008-0202563 ;~ "- " . DOc1t 2008-0202563 - " -- 11111111111111111 111111111111111111111111111111 111111111111111//11 1111 RECORDING REQUESTED BY APR 16, 2008 3'12 PM CITY OF POWAY OFFIClo.L RECORE", AND WHEN RECORDED MAIL TO ':~,~~'l ~l\~~~n C.OUN1'1 FiECOR[IER":, UFFICE bFiE_l11IH I ,I =,~'<,jITH CUU~'irl FiECOF:[IEF: FEE':, I}UO CITY CLERK In} PAGES: 12 CITY OF POWAY 11111111111111111111111111111111111111111111111111111111111111111111111111111111 POBOX 789 Nr POWAY, CA 92074 IWD (THIS SPACE FOR RECORDER'S USE) APN: 277-170-06 -' STORM WATER MANAGEMENT FACILITIES MAINTENANCE AGREEMENT No Documentary Transfer Tax Due ( CUP 90-13M(4) I DR 05-08 ) This AGREEMENT forthe maintenance and repair of certain Storm Water Management Facilities is entered into between Maderas Country Club, LLC (hereinafter referred to as "OWNER") and the City of Poway (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 Poway, California, more particularly described in Exhibit "A" hereto (hereinafter referred to as the "PROPERTY"), and has proposed that the PROPERTY be developed as Maderas Country Club Pavilion in accordance with applications for Conditional Use Permit No 90-13M(4) and Grading Permit No G1529-05, 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 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 andlor 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 Grading Plan dated January 6, 2006, on file with CITY'sDevelopment Services Department as Plan No. G1529-05 The manner and standards by which the BMP's must be 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 byCITY in approving OWNER's development applications. It is the purpose of this Agreement to assurethat 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 WOls ;.~ :'ff . . 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 or any portion of the PROPERTY, to comply in all respects with the requirements of the SUSMP 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 ACTIVITI ES" 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 heor she determines that it will function as well as the failed BMP; and (b) If the failure of the 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, prior to transferring ownership of any land on which any of the above BMP's are located, and also prior to transfering 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 requestedthe California Department of Real Estate to include in the public report issued forthe 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 tD perform any Dr 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 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 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 her,eby grants to CITY a perpetual easement over, under and across "that portion of the PROPERTY described in Exhibit "C" hereto" and 2 . . shown on Exhibit "D") ,.for purposes of accessing the BMP's and performing any of the MAINTENANCE ACTIVITIES specified in Paragraph 1 above. CITY shall have the right, at any time and without prior notice to OWNER, to entElr 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 Agre~mentfor 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 Poway 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 that 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 kind 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 willful misconduct of CITY PARTIES Nothing in 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 InterestDevelopments. If the PROPERTY is developed as a "Common Interest Development" as defined in Civil Code section 1351 (c) which will include membership in or ownership of an "ASSOCIATION" as defined in Civil Code section 1351(a), then the following pr()visions of this ParagraphS shall 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 controlled by the ASSOCIATION. (a) The ASSOCIATION, through its Board of Directors, shall assume full responsibility to perform the MAINTENANCE ACTIVITIES pursuant to this Agreement, and shall undertake all actions and efforts necessary to accomplish the MAINTENANCE ACTIVI:rIES, including but not limited 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 3 .. . . 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-conductingthe 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 collect delinquent assessments, including but not limitedto, 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 storm water 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 J)ersons purchasing orotherwise 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 reliElle OWNER of or otherwise affect OWNER's responsibilities for installation or maintenance of BMP'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 Agreementmay 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 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 bein the Superior Court ofthe' 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 4 " . . IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth hereinafter For OWNER Maderas Country Club, LLC, a California Limited Liability Company Sunroad Asset Management, Inc., its Manager ,~--- ~ Date 'I/5;i(?g' - Dan Feldman, President (Notarize) For CITY OF POWAY ~~ ~ ' Dot' f(,/Af Cast I 0, City ngineer Approved as to Form. Office of the City Attorney ~t-~ 3-31-08 Lisa Foster, City Attorney M:\engserv\eng forms\ std agrmnt documents\Storm Water Facilities Agmt maderas.doc 5 . . ALL-PURPOSE ACKNOWLEDGMENT State of California } (l ).... . SS County of ~Y) DI C30 .' . On Upn / :7, ZOO~ , before me, Lt 5c.- c.. Sn :ler-I fJolcv'j Pu..!of/c , jlATE ~ personally appeared JJ Ct n ~e ( J YV1 a VI , who proved to me on the basis of satisfactory evidence to be the person(-s) whose nameW is/are- subscribed to the within instrument and acknowlcdged to me that he/slle4lte-y executed the samc in his/hcl/tl,cil authonzed capacity(~, and that by his/ker/tkeir signatur~ on the instrument the person(-i,}, Of the entity upon behalf of which the person(-s)acted, executed the instrumcnt. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing i - - - - - - - - - - - - -...... - - - ~I paragraph is true and correct. e LISA A. SNYDER Commlllk>n tI 1625826 - Notary Public. CaUlomla I J ~D1,::,=~ j WITNESS my hand and official seal. ~ - - - - ,- - - - - - - - ~ - - - - ~ U V (f)lcJZG C ~pj,cLu- N( lTAHYS S!(iN T RE PLACE NuTAR\ SEAL IN A..BOVE SPACE OPTIONAL INFORMATION The informatIOn below is optional. However, it may prove valuable and could prevent fraudulent attachmcnt of this form to an unauthorized document. CAPACIH CLAIMED BY SIGNER (PRINCIPAL) DESCRIPTION or;:ATTACHED DOCUMENT o INDlVlDl'AL ~ St-orrv7 ~ Mr;,nC<f'.e.YI+r;u/rI-r~ IZI CORPORATE OFFICER "iV"cs{ de.n-f Me> I n1;L;wi 2RJc~FVPlU)\{li~~en+ o PARTNER(S', [JeLEls) c:: f) o ATTORNEY-IN-FACT .:J O NUMBER OF PAGES TRUSTEE(S, o GUARDIAN/CONSERVATOR Opn' I 7d 2.00 'is o OTHER. DATE F DOCUMENT OTHER SIGNER (PRINCIPAL) IS REPRESENTING: 2 NAMEOF PERSON(Sl OR ENTITY/IES) .,g RIGHT THUMBPRINT B- OF ~ SIGNER ~ 0- '" APA ()1!20UX NOTARY Bl lNllS. SUPPLIES AND FORMS AT J rTTl':lIWWWVALLEY SIERRA.COM f:) 2005-2lJOll VALLEY-SIERRA INSURANCE "' . . CALIFORNIA ~~L.P~RPOSE ACKNOWLEPQ~IEI\'IT ~~=>h'F<>I'Y~~"",^"""'~.........-~~FN">~~~ State of California } County of San Diego On -fimIL ~ 2tJtJ F before me, Phyllis Shinn, Notary Public ate' I-Iere Inseri Name and Tille 01 Ihe Otfleer personally appeared tJ2A .All< V1:5rz::- t-t: A/t::'--rD Name(s) oISlgner(s) who proved to me on the basis of satisfactory evidence to be the personlil whose namettJ is/~ subscribed to the within instrument and acknowledged to me .that ~.~~~;':1 hel*lt~y executl)dthe same in his/~/tl'!1* authorized capacity(i~, and that by his/*lt~ signature(~ on the instrument the personOO, or the entity upon behalf of I NOIafy PutIlJc . Calif.... I which the person~ acted, executed the instrument. , Ian DIogo CoUntY. 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 requirf?cj 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: Storm Water Managment Facilities. Maintenance Agreement Document Dale: March 31, 2008 Number of Pages: 12 Signer(s) Other Than Named Above: Lisa) Fos ter, Dan Feldman Capacity(ies) Claimed bySigner(s) Signer's Name: Signer's Name: o Individual o Individual o Corporate Officer - Title(s): o Corporate Officer - Tille(s): o Partner - 0 Limited 0 General o Partner - 0 Limiled 0 General o Attorney in Fact . o Attorney in Fact . o Trustee Top of thumb here o Trustee Top of thumb here o Guardian or Conservator o Guardian or Conservator o Other' o Other' Signer Is Representing: Signer Is Represenling: ~~~~~~~~~~~~~~~"""'~~~~~~ @2007NalionaINotaryAssociatlono9350DeSoloAve., P.O. Box 2<102 oChalsworlh, CA 9'13132402owww.Na/ionaINolary,org Item #5907 Reorder:Ca!lToll.Free 1-800-876-6827 . . EXHIBIT "A" Parcel 3 of Parcel Map No 17989 in the City of Poway, County of San Diego, State of California, per map thereof recorded in the Office of the County Recorder of San Diego county on February 25, 1998 as File No. 1998-0099090 " EXHIBIT "B" OPERATION AND MAINTENANCE PLAN The following Inspections and Maintenance Activities shall be performed and completed as indicated. STRUCTURAL TREATMENT CONTROL BMPS: BMPs INSPECTION INSPECTION MAINTENANCE MAINTENANCE ACTIVITY FREOUENCY INDICATOR Storm Drain Inlet Visually inspect for Day following each Sediment more than 1/2 the height of Remove and properly dispose of sediment, trash, and . Filters sedimentation, trash, and "Significant Rain Event" . liiter body, or presence of sufficient debris debris trash or debris to hinder filter I performance Yisually inspect adsorbent Day following each Adsorbent medium dark gray or darker 1. Replace'adsorbent media within one.working day; , filter media for oil and arease "Sianificant Rain Event" . or saturated with oil 2, Characterize andaroperlv dispose of spent media Visually inspect insert Each April and October Rips, tears, gash, or other visible 1. Replace or repair insert within ten working days; I components for structural damage to insert; or fallen media 2. Contact vendor and implement measures integrity recommended to prevent future damaoe Replacement of Medium Annually during September Required Annually 1. Remove, characterize and dispose of adsorbent medium; 2_ Reinstall fresh adsorbent medium . Whenever the National Weather Service reports 0.75" of rain in 48 hours for the local community. - . . . EXHiBIT "C" BMP MAINTENANCE EASEMENT MADERAS PAVILION I CUP 90-13M(4) That portion of Parcel 3 of Parcel Map No 17989, in the City of Poway, .county of San Diego, State of California, filed in the Office of the. County Recorder of San Diego County, February 25, 1998, more particularly d~scribed as follows: COMMENCING at the intersection of the Northwesterly 30 foot half-width sideline of Old Coach Road as shown on said Parcel Map No. 17989 and the Easterly line of said Parcel 3, thence along said Northwesterly line of Old Coach Road, South 45046'41" West, 323_63'feet to the TRUE POINT OF BEGINNING, thence continuing along said Northwesterly line the following two courses. South 45046'41" West, 26:41 feet to the beginning of a tangent 103000 foot radius curve, concave to the Southeast; thence Southwesterly, along said curve, through a central angle of 00028'40" an arc distance: of 8_59 feet; thence leaving said Northwesterly ,line, non-tangent to said curve, North 44013'19" West, 32.15 feet to the beginning of a tangent 19500 foot radius curve, concave to tl;Je Northeast; thence NorthWe~terly, along said curve, through a central, angle of ., . 3r11 '43" an arc distance of 126 59 feet; thence North Or01 '36" West, 99 44 feet to the beginning of a tangent 10500 foot radius curve, concave to the West; thence Northerly, along: said curve, through a central angle of 20059'03" an arc distance of 38.46 feet; thence non-tangent to said curve, South 5800T09" West, 8453 feet; thence North 31052'51" West, 2000 feet; thence North 5800T09" East, 83_97 feet to the beginning of a non-tangent 105.06 foot radius curve, concave to the Southwest, a radial to said point bears North 51003'18" East; thence Northwesterly, :along said curve, through a' central angle of 33011 '46" an arc distance of 60 84 feet, to the beginning of a compound 280 00 foot radius curve, concave to the ~outh, a radial to said point bears North 1r51'32" East; thence Westerly, along said curve, through a central angle of 30012'29" an arc distance of 14762 feet; thence South 77039'03" West, 9068 feet to the beginning of a non-tangent 65 00 foot radius curve, concave to the Northwest,a radial to said point bears North 89010'17" East;. thence Southwesterly, along said curve, thr6ugha central angle of 78045'26" an arc distance of 89 35 feet; thence South 7r55'43" West, 19.24 feet; thence North 12004'17" West, 2000 feet; thence North 7r55!43" East, 19.24 feet to the beginning, of a tangent 45 00 foot radius curve, concave to the Northwest; thence Northeasterly, along s.aidcurve, through a central angle of 73030'38" an arc distance of 5774 feet; thence non- tangent to said curve, North 12020'57" West, 35 00 feet; thence North 77039'03" East, 111.28 feet to the beginning of a tangent 315 00 foot radius curve, concave to the South, thence Easterly, along said curve, through a central angle of Page 1 of 2 (~ . . 30012'29" an arc distance of 166 08 feet, to the beginning of a compoui1d 14000 foot'rad-ius curve, concave to the Southwest, a radial to said point bears North 17"51'32" East; thence Southeasterly, along said curve, through a central.angle of 65006'52" an arc distance of 159 10 feet; thence,South 07"01'36" East, 9944 feet to the beginning of a. tangent 16000 foot radius curve, concave to the Northeast; thence Southeasterly, along said curve, through a central angle of 37"11'43" an arc distance of 10387 feet; thence South 44013'19" East, 32.11 feetto the TRUE POINTOFBEGINNING Contains 0.61 acres, more or less. This legal description was prepared by me or under my supervision pursuant to the requirements of the Professional Land 'Surveyors Act. .~b~~ Jose . Cresto Da e P.L.S 8050 Page 2 of 2 PAGE 1 OF 1 . ' EXHIBIT "0" MADERAS PAVILION \ roc 0 ~ 0 LEGEND CUP 90-13M(4) " \ v= ~ D , (Qj) ~ v= w. BMP MAINTENANCE w \ 00 -' EASEMENT <( '-' - (j) I1A - T.P.O.B, TRUE POINT OF IP,IMo INlOo ~1fB)~fB) !/r \- d BEGINING - (R) RADIAL BEARING IPAIRlC;lEl 3 ~ \~ ~ ,"-'/ /:1/0;- F . /-...::. \ ~ D~30'12'29O (;;/ <...> ;""/0 \ roc R~315 00' !ii/o.. L~166 .08' / D", F <: ~'" 6'0', \ 00 ~ )'~ Q N L 147 62' 0. 0 <5'. POINT OF \ 0 ~ ~'QS ~ ..J R=280.00' c.> '?: v"'. COMMENCEMENT ~ " 0=30'12 '29" 0.' - v= " " " N89'10'17"E -- - (R) -- - L10 '\.() DATA TABLE ------------------------------------ NO BRNG/DELTA RAD IUS LENGTH ------------------------------------ C1 00'28'40" 1030.00' 8 59' LZ N44'13'19"W --- 32 15' C3 20'59'03" 105.00' 38 .46 ' L4 S58'07'09"W --- 84 53' L5 N31'5Z'51"W --- 20 00' L6 N58'OY'09"E --- 83 9Y' ~ fQ1, CY 33'11'46" 105.00' 60 84' ~ ~ L8 S77'39'03"W --- 90 68' C9 78'45'26" 65.00' 89 35' L10 S77'55'43"W --- 19 24' ~ Ll1 N12'04 '1Y"W --- 20 00' L12 N77'55'43"E --- 19.24' = C13 73'30'38" 45 00' 57 74' 0 L14 N12'20'5Y"W --- 35 00' /' L15 S44'13'19"E --- 32 11' /' BMP MAINTENANCE EASEMENT CIVIL ENGINEERS. PLANNERS. LAND SURVEYORS IN 9665 CHESAPEAKE DRIVE PHONE' 858.694.5660 PARCEL 3, P,M. NO, 17989 SUITE 320 'AX 858.694.5661 SAN DIEGO, CA 92123-1324 WW'\oV.scengr.com IN: 05007 04 DWG: BMPESMT PLOT: 03-03~08