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HomeMy WebLinkAbout2005 CON Private Storm Water Agreement - APN 557-250-47-00 - Halle PropertiesRecording Requested By: ) ) Director of Public Works/Engineering) ) When Recorded Mail to: ) City Clerk ) City of National City ) 1243 National City Blvd. ) National City, CA 91932 ) SPACr, v r r uic K r&,utclitic 3 u 3n UM, PRIVATE STORM WATER TREATMENT MAINTENANCE AGREEMENT Assessor's Parcel No. 551-S5a- 41-0o Project No.: W.O.No.: THIS AGREEMENT for the periodic maintenance and repair of that certain private storm water treatment facility (hereinafter referred to as the "SWTF"), is, the legal description and/or plat of which is set forth in Exhibit(s) 'A' attached hereto and made a part hereof (hereinafter referred to as the "property"), is entered into by HAu.E f 1CS (hereinafter referred to as "Developer") for the benefit of future owners who will use the private SWTF, which shall also include the Developer to the extent the Developer retains any ownership interest in any land covered by this agreement, (hereinafter referred to as "owners"). WHEREAS, this Agreement is required as a condition of approval by the City of National City of a subdivision project as defined in Section 21065 of the Public Resources code and pursuant to City of National City Municipal Code Chapter 14.22 and Ordinance No. 2002-2213 for Standard Urban Storm Water Mitigation Plan (SUSMP); and WHEREAS, Developer is the owner of certain real property described in Exhibit "A" that will use and enjoy the benefit of said private SWTF incidental to its development. The private SWTF have been separately described in Drawing Numbers 612 — , copies of which are on file in the office of the City Engineer. Installation of the private SWTF is a condition of developing the property; and WHEREAS, it is the desire of the Developer that said private SWTF shall be maintained in a safe and usable condition by the owners; and miGG # G 96(o WHEREAS, it is the desire of the Developer to establish a method for the periodic maintenance and repair of said private SWTF and for the apportionment of the expense of such maintenance and repair among existing and future owners; and WHEREAS, it is the City's requirement for the Developer to submit to the City an annual maintenance report; and WHEREAS, there exists a benefit to the public when the private storm water facilities are adequately maintained on a regular and periodic basis; and WHEREAS, it is the intention of the Developer that this Agreement shall constitute a covenant running with the land, and shall be binding upon each successive owner of all or any portion of the property. NOW THEREFORE, IT IS HEREBY AGREED AS FOLLOWS: 1. The property is benefited by this Agreement, and present and successive owners of all or any portion of the property are now and shall be hereafter expressly bound by the maintenance agreement for the benefit of the land. 2. The cost of maintaining the installed private SWTF shall be paid by the owner or the heirs, assigns and successors in interest of each such owner, proportional to their respective interest. 3. In the event any of the herein described parcels of land on the property are further subdivided, t he o wners, h eirs, a ssigns a nd s uccessors i n i nterest o f e ach n ewly c reated parcel shall be liable under this Agreement for their then pro rata share of expenses and such pro rata shares of expenses shall be computed to reflect their proportionate interest in such newly created parcels. 4. The repairs and maintenance to be performed upon the private SWTF under this Agreement on the property shall be adequate to maintain said private SWTF in a functional condition in accordance with their intended purpose. Repairs and maintenance under this Agreement shall include, but is not limited to, repairing access roadbeds, repairing and maintaining drainage structures, removing debris, if any, and other work reasonably necessary and proper to repair and preserve the private SWTF for their intended purposes. 5. If there is a covenant, agreement, or other obligation imposed as a condition of the development on the property, the obligation to repair and maintain the private SWTF as herein 2 set forth shall commence when the improvements have been completed and approved by the City. 6. Any extraordinary repair required to correct damage to said SWTF that results from action taken or contracted for by the owners or their successors in interest shall be paid for by the party taking action or party contracting for work which caused the necessity for the extraordinary repair. The repair shall restore the private SWTF to the condition and proper storm water functioning existing prior to said damage. 7. Any liability of the owners for personal injury as a result of or arising out of repairs and maintenance under this Agreement shall be borne by the owners in proportion to their respective interest in the property. Owners shall be responsible for maintaining their own insurance. This Agreement is not intended to provide for any sharing or assumption of liability with respect to personal injury or property damage other than that attributable to the repairs and maintenance undertaken under this Agreement. 8. Owners shall jointly and severally defend, indemnify and hold harmless the City and each of its officials, directors, officers, agents and employees from and against all liability, claims, damages, losses, expenses, personal injury and other costs, including costs of defense and attorney's fees arising out of or in any way related to the use of, repair or maintenance of, or the failure to repair or maintain the private SWTF. 9. Nothing in this Agreement, the specifications or other contract documents or the City's review and approval of the plans and specifications or inspection of the work or maintenance related to the private SWTF is intended to constitute an acknowledgement of a responsibility or liability for any such matter, and the City and each of its officials, directors, officers, employees and agents, shall have no responsibility or liability in connection with their reviews or approvals. 10. This instrument shall be recorded and the obligation hereby created shall constitute a covenant running with the land, and each subsequent purchaser of all or any portion thereof, by acceptance of delivery of a deed and/or conveyance regardless of form, shall be deemed to have consented to and become bound by this agreement, including without limitation, the right of any person entitled to enforce the terms of this Agreement to institute legal action as provided in Paragraph 8 hereof, such remedy to be cumulative and in addition to other remedies provided in this Agreement and to all other remedies at law or in equity. 3 11. The terms of this Agreement may be amended in writing upon majority approval of the owners of the land described in Exhibit A and with the consent of the City, which consent shall not be unreasonably withheld. 12. This Agreement shall be governed by the laws of the State of California. 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. 13. If the Property constitutes a "Common Interest Development" as defined in California Civil C ode Section 1351(c) which will include membership in or ownership of an "Association" as defined in California Civil Code Section 1351(a), anything in this Agreement to the c ontrary n otwithstanding, t he following p rovisions s hall a pply d uring such time as (i) the Property is encumbered by a "Declaration" (as defined in California Civil Code Section 1351(h), and (ii) the Common Area of the property (including the private SWTF) is managed and controlled by an Association: (a) The Association, through its Board of Directors, shall repair and maintain the private storm water treatment. The Association, on behalf of the owners, shall not be relieved of this duty except by amendment to the Declaration, and shall receive no compensation for performing such duties. The costs of maintenance and repair shall be assessed against each owner proportional to his/her subdivision i nterest i n t he P roperty p ursuant t o t he D eclaration. The assessments shall be deposited in the Association's corporate account. (b) The provisions in the Declaration which provide for assessment liens in favor of the A ssociation and e nforcement t hereof s hall s upersede Paragraph 8 of the Agreement in its entirety, and the Association shall assume the duty to defend, indemnify and hold harmless the City described in paragraph 8. No individual owners shall have the right or duty to alter, maintain or repair any of the Common Area (as defined in California Civil Code Section 1351(b) in the Property except as may be allowed by the Declaration. (c) This Agreement shall not be interpreted in any manner, to reduce or limit the Association's rights and duties pursuant to its Bylaws and Declaration. 4 IN WITNESS WHEREOF, the parties have executed this Agreement This O)D day off A , 200c. Developer: (Print name) Agik`1 e Vvet deirk6te S V L. L. (Print name:) Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement. D,„,i,.\\If 4,7,s* 5 CERTIFIED COPY OF RESOLUTIONS OF HALLE PROPERTIES, L.L.C. An Arizona Limited Liability Company The undersigned hereby certifies that he is agent for the managing member of Halle Properties, L.L.C., an Arizona Limited Liability Company, hereinafter referred to as the "Company", and that the following is a full, true and correct copy of resolutions duly adopted by the Members of said Company and that this resolution is in full force and effect and has not been amended, suspended or repealed. RESOLVED, that Daniel S. Wainwright is agent of Halle Properties, L.L.C., and in such capacity, is authorized to sign any and all documentation necessary for obtaining utilities and other transactions relating to the construction of the building to be used as a Discount Tire Co./America's Tire Co. store in the State of California. IN WITNESS WHEREOF, I have hereunto set my hand on the day and year stated herein. HALLE PROPERTIES, L.L.C. An Arizona limited liability company By: Wilanna, Inc., an Arizona corporation, Managing Member James Silhasek Agent STATE OF ARIZONA ) ) ss. COUNTY OF MARICOPA ) Before me, the undersigned Notary Public, on this 22"d day of July, 2004, personally appeared James Silhasek, who acknowledged to be agent of Wilanna, Inc., an Arizona corporation, the managing member of Halle Properties, L.L.C., and that he, being authorized so to do, executed the foregoing instrument for the purposes stated therein. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. My Commission Expires: 2- C `\ t e Notary Pu M:IlegaltWPIRESOLU771HPresolution letter DWAIN ca I2303.doc 7.21.04 OFFICIAL STEPHANIE H a AN NOTARY PUBLIC- = ' NA MARICOPA COUN r M Comm. Expires Feb_19, 2006 NOTARY ACKNOWLEDGEMENT STATE OF ARIZONA COUNTY OF MARICOPA On May 20 2005 , before me, Kathy Peters, Notary Public, personally appeared Dan Wainwright , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) and that byhis/her/their signature(s) on the instrument, the person(s) or the entity(ies) upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. L Notary Public OFFICIALSEAL KATHY PETERS NOTARYPUBLIC-ARIZONA MARICOPA COUNTY My Comm. Expires July 26, 2007 (This area for official notarial seal) IQ 11 a 1n 924-46 N AVENUE OWNER: WALTER MDRAWA LOUISE MDRAWA A.P.N. 557-250-38 POSSESSION AND USE Of\ VEAENYS IS OUTSIDE PROPERTY 1, DRIVEWAY, GATE, CURB, FENCE, WALL ENCROAGES ONTO NEIGHBORING PROPERTY CN18.53'47'V 20.10') N18.54'33'V 20.10' 46.41 RIM PLANTER 0 8. 8" 1175 E PLAZA B0JIYARD OVER OLSCN 737-NATIONIL CITY 3 U_C A.P.N. 557-250-46 c• n PARCEL 1 PM 12554 m: DRAINAGE CHANNEL - CURB MEANDERS */-0.9' ALONG PROPERTY LINE ASPHALT PLANTER 0 W 3' 0 L 3.94 APARTMENTS 46.22 RIM 28.82 Flo. / ELEC WITH APARTMENTS STIED CONDUITS DISCOUNT TIRES E PLAZA BOULEVARD / 1-STORY BUILDING 9,404 S.F OWNER HALLE-VON VOIGTLANIER A.P.N. 557-250-47 PARCEL 2 PN 60.0' �+ APARTMENTS CONC WALL 26' D/W / ACCESS FINISH FLOCK- 46.77 /I BUILDING HEIGHT - 64.7 / n / CATCH BASIN °SIG 10' BUILDING-, — SETBACK LINE N79'47'OPV 16805' \ W79'47'01'V 168.00'> ACCESS 46.34 RIM 29.22 FL 10.50 • EXHIBIT 'A' ASPHALT / / / 12554 CATCH BASIN ``STORAA1 DRAIN � © R _A 25' D/W ACCESS TYPE A QJRB OUTLET PER D-25 PLAZA BOULEVARD 46.29 RIM 29.29 11;oo —RETAINING WALL (GATE `CMALL ENCROACHES WARR 33' D/W ACCESS 14" 10' PLANTER 0 / / SIZZLER RESTAURANT PARKING LOT 1325 E PLAZA BOULEVARD OWNER: GLEN) C BATCHELOR MELBA RUTH BATCHELOR 11-24-93 A.P.N. 557-250-41 PARCEL 6 PM 3114 / PARCEL 2 PM 5574 ■ ■ ■ CONSULTING g 1325 E PLAZA BOULEVARD OWNER: GLENN! C BATCHELOR MELBA RUTH BATCHELOR 11-24-93 A.P.N. 557-250-40 12.00 PLANNSNO ■ DESIGN • CONSTRUCTION 9755 CLAJE1/0HT ►ESA BOULEVARD. BUTE 100 BAN DE00. CALFCOO4A 92124-024 858.61 5000 • FAX 658614.5001 • n+wBEE corn