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HomeMy WebLinkAbout103-2. Drainage Maintenance Covenant.pdf Balakrishnan Trust Drainage Maintenance Agreement Page 1 RECORDING REQUESTED BY: CITY OF SARATOGA AFTER RECORDATION RETURN TO: CITY OF SARATOGA Attn: City Clerk 13777 Fruitvale Avenue Saratoga, CA 95070 THIS SPACE FOR RECORDER'S USE DRAINAGE MAINTENANCE COVENANT THIS COVENANT AGREEMENT is made and entered into effective this _______ day of December, 2011 by and between the CITY OF SARATOGA, a municipal corporation, (hereinafter referred to as “CITY”), and the Balu and Mohini Balakrishnan Trust, (hereinafter referred to as “OWNER”). RECITALS WHEREAS, OWNER is the owner of certain real property located in the City of Saratoga, County of Santa Clara, State of California, known as Assessor’s Parcel Numbers: 503- 78-036, 503-78-037, and 503-78-039 (parcel 503-78-039 being the combination of original parcels 503-78-033, 503-78-035 and 503-78-038) as described in more detail in Exhibit A hereto (“Property”); and WHEREAS, OWNER AND CITY have entered into a SUBDIVISION IMPROVEMENT AGREEMENT, recorded October 30, 2008 as Document # 20033350 and attached as Exhibit B hereto (“SIA”); and WHEREAS, OWNER AND CITY have agreed to an Amendment to the Subdivision Improvement Agreement, attached as Exhibit C hereto (“Amendment to SIA”); and WHEREAS, only one parcel, 503-78-036 (“Developed Parcel”), has been developed and only subdivision improvements (e.g., road, utilities) related to the developed property have been constructed; and WHEREAS, OWNER lives in the single-family dwelling on the Developed Parcel (503- 78-036), and parcels 505-78-037 and 503-78-039 (“Undeveloped Parcels”) of the Property remain vacant and OWNER represents that it does not have any intention to develop either of the Undeveloped Parcels in the foreseeable future; and Balakrishnan Trust Drainage Maintenance Agreement Page 2 WHEREAS, the Amendment to SIA allows for the deferral of obligations to (1) construct certain Works of Improvement and (2) to furnish improvement security (as required by the SIA) until the OWNER or future owner(s) actually develops either of the Undeveloped Parcels (503- 78-037 or 503-78-039); and WHEREAS, the Undeveloped Parcels have storm drain systems as the sole utility systems installed on the lots that may require maintenance in the future, notwithstanding the lots remaining undeveloped or unsold; and WHEREAS, the CITY would like to ensure that the storm drainage system is maintained on the Undeveloped Parcels, as a condition for approval of the Amendment to SIA; and WHEREAS, the Drainage Maintenance Covenant does not change the OWNER’s already existing responsibility to maintain the storm drainage system on the Developed Parcel and OWNER shall remain responsible for such maintenance. NOW, THEREFORE, the OWNER and CITY hereby agree as follows: 1. Storm Drain System Maintenance OWNER agrees to maintain the storm drainage system on the Undeveloped Parcels to the satisfaction of the CITY’s Director of Public Works (“DPW”). OWNER agrees that the DPW shall have the right to reject any or all of the work or maintenance to be performed under this Agreement if such work does not, in the DPW’s sole determination, conform to CITY standards, or any applicable law, rule, regulation, permit, or condition of approval. 2. Perpetual Maintenance of Storm Drain System At all times OWNER, at no cost or expense to CITY, shall cause said storm drainage system to be at all times perpetually kept and maintained in good and orderly condition, repair and maintenance, in conformance with the requirements of CITY regulations. 3. Right to Inspection The CITY maintains the right, but no obligation, to enter the Property to inspect the storm drainage system at reasonable times to determine if it is kept and maintained in good and orderly condition, repair and maintenance, in conformance with the requirements of CITY regulations. Although CITY maintains this right, nothing herein shall be construed to impose any duty, responsibility, or obligation upon the CITY to inspect, visit or otherwise view said storm drainage system for purposes of determining whether upkeep and maintenance repairs are required pursuant to this Agreement. 4. Failure to Perform Under Agreement When, in the sole determination of the DPW, said storm drainage system has not been maintained in compliance with applicable requirements or has deteriorated to such an extent that Balakrishnan Trust Drainage Maintenance Agreement Page 3 the system no longer meets specific maintenance requirements, the DPW may give written notice of the deficiencies to OWNER and demand for correction thereof. In the event OWNER fails to perform and complete the corrective work within ninety (90) days following receipt of the written demand from the DPW (or if the corrective work is of such nature that it cannot reasonably be completed within ninety (90) days, then in the event OWNER fails to promptly commence such work and prosecute the same diligently to completion), then OWNER hereby consents that CITY shall have the right, but not the obligation, to enter the Property and to cause such corrective work to be performed, in whole or in part, by its own agents and employees or by outside contractors retained by CITY for such purpose. Any and all costs or expenses incurred by CITY in connection with the performance of the corrective work shall be charged to OWNER and shall be immediately due and payable by OWNER to CITY within thirty (30) days after OWNER’s receipt of CITY’s written demand. Until such charges are paid in full by OWNER, the amount thereof shall constitute a lien and encumbrance upon the Property. Said lien may be enforced in a civil action brought in the name of CITY in any Court of competent jurisdiction, or in the alternative (in the CITY’s sole discretion), shall constitute a special assessment for nuisance abatement against the Property and shall be collected at the same time and in the same manner as real property taxes are collected by CITY, all the provisions relating to tax delinquency being made applicable thereto. In addition, until the corrective work required by the CITY is completed to the satisfaction of the DPW and/or all costs or expenses incurred by the CITY in its performance of the corrective work is paid in full, CITY may deny any required approval or permit for development of any portion of any of the Undeveloped Parcels or, in the CITY’s sole discretion, condition issuance any such approval or permit on completion of such corrective work and/or payment in full of such costs and expenses. Nothing herein contained shall be construed to impose any duty, responsibility, or obligation upon the DPW to inspect, visit or otherwise view said storm drainage system for purposes of determining whether upkeep and maintenance repairs are required pursuant to this Agreement, or to take any action whatsoever, pursuant to this section. 5. No Waivers Enforcement of the terms of this Agreement shall be at the sole discretion of the CITY, and any forbearance by the CITY to exercise its rights under this Agreement in the event of any breach of any term of this Agreement by OWNER shall not be deemed or construed to be a waiver by the CITY of such term or of any subsequent breach of the same or any other term of this Agreement or of any of the CITY’s rights under this Agreement. No delay or omission by the CITY in the exercise of any right or remedy upon any breach by OWNER shall impair such right or remedy or be construed as a waiver. Notwithstanding any other provision of law, all waivers must be express and in writing. Balakrishnan Trust Drainage Maintenance Agreement Page 4 6. Indemnification and Defense OWNER shall hold harmless, indemnify and defend CITY and its respective officers, directors, governing members, employees, volunteers, contractors, partners, insurers, attorneys, agents, successors and assigns of each of them (collectively “Indemnified Parties”) from and against all liabilities, penalties, costs, losses, orders, liens, charges, damages, expenses, causes of action, claims, demands or judgments, including, without limitation, reasonable attorneys’ fees, arising from or in any way connected with: (a) Injury to or the death of any person or physical damage to any property, resulting from any act, omission, condition or other matter related to or occurring on or about the Undeveloped Parcels, or CITY property on which any storm drainage systems or improvements are installed, regardless of cause, and including any liability for any active or passive negligence of any of the Indemnified Parties arising out of or related to the storm drainage system improvements, unless due to the sole negligence or willful misconduct of any of the Indemnified Parties; (b) Any claim based on the existence or administration of this Agreement, or the enforcement or nonenforcement thereof. 7. Liability for Non-Performance and Personal Injuries Neither CITY nor any of its officers, employees or agents shall be liable to OWNER or OWNER’s contractors for any error or omission arising out of or in connection with any work to be performed under this Agreement. Nor shall CITY be liable to OWNER or to any other person, firm or corporation whatsoever, for any injury or damage that may result to any person or property by or from any cause whatsoever in, on, or about the Undeveloped Parcels, or the City Property, covered by this Agreement, or any part thereof. 8. Obligations of Owner Notwithstanding the fact that OWNER’s plans, completion of the work, and other acts are subject to approval by the CITY, it is understood and agreed that any approval by CITY thereof shall not relieve OWNER from satisfactorily maintaining the storm drain system(s) under this Agreement. Compliance with the CITY’s standards, specifications and all applicable laws, rules, regulations, permits and conditions of approval shall be the sole responsibility of the OWNER. OWNER hereby warrants that its plans and specifications will comply with all of CITY’s standards, specifications and ordinances and that the work done pursuant thereto shall be in conformity with the said standards, specifications and ordinances and that the OWNER’S plans and specifications are adequate to accomplish the work in a good workmanlike manner and in accordance with sound drainage maintenance practices. This warranty shall survive any review, inspection or approval by the DPW and any other CITY officers, employees or agents. Balakrishnan Trust Drainage Maintenance Agreement Page 5 9. Notices Any notice, demand, request, consent, approval, or communication that any party desires or is required to give to any other party shall be in writing and may be served in any one of the following ways: personally, by mail, or by overnight delivery service (such as Federal Express) addressed as follows: To OWNER: Balu and Mohini Balakrishnan Trust dated June 9, 1993 c/o 21789 Villa Oaks Lane Saratoga, CA 95070 To CITY: Director of Public Works City of Saratoga 13777 Fruitvale Avenue Saratoga, CA 95070 or to such other address as any party from time to time shall designate by written notice to all other parties. Such notice shall be deemed to be effective when delivered if served personally or sent via overnight delivery service, and five days after being deposited in the mail. 10. General Provisions (a) Controlling Law. The interpretation and performance of this Agreement shall be governed by the laws of the State of California. OWNER and CITY have all of the rights and remedies available to them under the laws of the State of California. (b) Severability. If any provision of this Agreement is found to be invalid, the remainder of the provisions of this Agreement, or the application of such provision to any person or circumstance other than those as to which it has been found to be invalid, shall not be affected thereby, unless such provision was a material consideration for this Agreement. (c) Entire Agreement. This instrument sets forth the entire agreement of the parties with respect to the maintenance of the storm drainage system and supersedes all prior understandings, discussions, negotiations, or agreements relating to the Agreement, all of which are merged herein. No alteration or variation of this instrument shall be valid or binding unless OWNER and CITY jointly amend this Agreement in writing. (d) Successors. The covenants, terms, conditions, and restrictions of this Agreement shall constitute covenants running with the land and shall be binding upon, and inure to the benefit of, the parties hereto and their respective personal heirs, representatives, successors, transferees and assigns. All such heirs, representatives, successors, transferees and assigns shall be bound to every provision in this Agreement, whether or not this Agreement is referred to in the instrument by which such heirs, representatives, successors, transferees or assigns acquire an interest in the Undeveloped Parcels. Balakrishnan Trust Drainage Maintenance Agreement Page 6 (e) Captions. The captions in this instrument have been inserted solely for convenience of reference and are not a part of this instrument and shall have no effect upon construction or interpretation. (f) Warranty of Authority. Each person executing this Agreement on behalf of a party represents and warrants that such person is duly and validly authorized to do so and has full right and authority to enter into this Agreement and all of its obligations hereunder. (g) Timing of Agreement. The Parties hereby agree that time is of the essence as to this Agreement. 11. Independent Legal Counsel The undersigned parties acknowledge their right to obtain independent legal advice prior to entering into this Agreement. The undersigned parties have either obtained the advice of legal counsel prior to entering into this Agreement or voluntarily waive the right to do so by signing it. The undersigned parties execute this Agreement voluntarily with full knowledge of any rights they may have, with full knowledge of the significance of this Agreement, and with the express intention of effecting the legal consequences provided by the laws of the State of California. IN WITNESS WHEREOF, this agreement has been duly executed by the parties hereto on December ____, 2011. Date _________ Owner/Subdivider: Balu and Mohini Balakrishnan Trust dated June 9, 1993 ______________________________ Balu Balakrishnan, individually and as Co-Trustee ______________________________ Mohini Balakrishnan, individually and as Co-Trustee Date__________________ City of Saratoga By: __________________________ Dave Anderson, City Manager Balakrishnan Trust Drainage Maintenance Agreement Page 7 Attachments: Exhibit A – Legal Description of Property Exhibit B – Subdivision Improvement Agreement Exhibit C – Amendment to Subdivision Improvement Agreement Balakrishnan Trust Drainage Maintenance Agreement Page 8 INSTRUCTIONS This Agreement shall be recorded. Owner(s) signature(s) must each be acknowledged by a notary. Inform the notary that the acknowledgement is for an instrument to be recorded (California Civil Code §1169, et seq.) ACKNOWLEDGEMENT State of California ) County of ) On ______________________________________ before me, , personally appeared , who 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 by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature ______________________________ (Seal) ACKNOWLEDGEMENT State of California ) County of ) On ______________________________________ before me, , personally appeared , who 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 by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature ______________________________ (Seal) Balakrishnan Trust Drainage Maintenance Agreement Page 9 ACKNOWLEDGEMENT State of California ) County of ) On ______________________________________ before me, , personally appeared , who 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 by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature ______________________________ (Seal) [Seal] Balakrishnan Trust Drainage Maintenance Agreement Page 10 EXHIBIT A [INSERT PROPERTY DESCRIPTION] Balakrishnan Trust Drainage Maintenance Agreement Page 11 EXHIBIT B [INSERT SUBDIVISION IMPROVEMENT AGREEMENT] Balakrishnan Trust Drainage Maintenance Agreement Page 12 EXHIBIT C [INSERT AMENDMENT TO SUBDIVISION IMPROVEMENT AGREEMENT]