Storm Water Management Faciliites Maintenance Agreement 2019-0239750 DOC# 2019-0239750
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RECORDING REQUESTED BY: Jun 19, 2019 11:08 AM
OFFICIAL RECORDS
CITY OF POWAY Ernest J. Dronenburg, Jr.,
SAN DIEGO COUNTY RECORDER
FEES: $0.00 (SB2 Atkins: $0.00)
AND WHEN RECORDED MAIL TO:
PAGES: 12
CITY CLERK
CITY OF POWAY
P 0 BOX 789
POWAY, CA 92074
(THIS SPACE FOR RECORDER'S USE)
APN: 321-100-43
STORM WATER MANAGEMENT FACILITIES
MAINTENANCE AGREEMENT
15012 Tooth Rock Road
The undersigned grantor(s)declares:
Documentary Transfer Tax is $-0-pursuant to R&T Code 11922(conveyance to a Government Agency)
This AGREEMENT for the maintenance and repair of certain Storm Water Management Facilities is
entered into between the Property Owner McCenza Eight LLC., (hereinafter referred to collectively 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 Attachment "A", hereto (hereinafter referred to as the "PROPERTY"),
which is being developed into a single-family residence, in accordance with applications for a Minor
Development Review Application 16-023, which is 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 Stormwater Management and Discharge Control
Ordinance, Poway Municipal Code, Chapter 13 and 16 (the "Stormwater 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"BMPs":
Two biofiltration basins located on the proposed property as shown on Attachment "B".
The precise location(s) and extent of the BMPs are indicated in the approved Storm Water Quality
Management Plan, dated September 29, 2017, on file with CITY's Development Services Department
as MDRA16-023. The manner and standards by which the BMPs must be repaired and maintained in
order to retain their effectiveness are as set forth in the Operation and Maintenance Plan (hereinafter
"O&M PLAN"), which is attached hereto and incorporated herein as Attachment "C".
Because additional impervious area may require the addition of or alteration of storm water
management areas and strategies, no impervious area may be added to the project site without prior
approval from the City Engineer. Additional impervious area includes, but is not limited to, patio
covers, hardscape improvements, and building additions.
WHEREAS, OWNER's representations that the BMPs 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 BMPs are maintained, by creating obligations that 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 that are provided by law.
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 Stormwater Ordinance with regards to the maintenance of BMPs, 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 BMPs listed above, at the
times and in the manner specified in the O&M PLAN. OWNER shall keep records of this
maintenance and provide copies of such records and annual certification of maintenance as
requested by CITY. 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 BMPs in the event of failure. Replacement shall be with an identical type,
size and model of BMP, except that:
(a) The City Engineer may authorize substitution of an alternative BMP if he or she
determines that it will be as effective as the failed BMP; and
(b) If the failure of the BMP, in the judgment of the City Engineer, indicates that the BMP in
use is inappropriate or inadequate to the circumstances, the BMP must be modified or
replaced with a more effective 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 BMPs are located, or any lot or portion of the PROPERTY which is
served by the above BMPs, and also prior to transferring ownership of any such BMP, provide
clear written notice of the above described maintenance obligations to the transferee.
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. Such maintenance by the CITY shall
be conducted in accordance with the nuisance abatement procedures set forth in Poway
Municipal Code Chapter 8.72. In the case of maintenance performed by the CITY, it may be
performed by CITY forces, or a contractor hired by the CITY, at the CITY's sole election. 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
SWMFMA Toothrock Lot 1 (MDRA16-023) Page 2
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, plus an administrative fee. OWNER's obligation to pay CITY's
costs of performing MAINTENANCE ACTIVITIES is a continuing obligation. If OWNER fails to
pay CITY's costs for performing MAINTENANCE ACTIVITIES, CITY may assess a lien on the
property or properties of the responsible parties pursuant to the procedures set forth in Poway
Municipal Code Chapter 8.72.
4. Grant of Easement to CITY. OWNER hereby grants to CITY a perpetual easement over,
under and across all of the PROPERTY, for purposes of accessing the BMPs, inspecting the
BMPs, 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 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 the City Engineer as the
officer charged with responsibility and authority to administer this Agreement on behalf of
CITY. Any notice or communication to the City related to the implementation of this
Agreement shall be addressed to:
City Engineer
City of Poway
13325 Civic Center Drive
Poway, CA 92064
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. Allocation of Costs. Following the sale or transfer of any of the individual residential lots by
OWNER, the cost of the MAINTENANCE ACTIVITIES required by this Agreement shall be
divided equally by all lot owners, and paid by each lot owner or his or her heirs, assigns and
successors in interest. This requirement shall be binding on all lot owners in the subdivision,
and each shall be responsible for his or her equal share of the cost associated with the
maintenance.
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
SWMFMA Toothrock Lot 1 (MDRA16-023) Page 3
•
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 shall 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.
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 of BMPs which may have arisen
under the ordinances or regulations of CITY referred to in this Agreement, 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 Director of Development Services 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 BMPs 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 be in the Superior
Court of the State of California, County of San Diego. OWNER hereby waives any right to
remove any such action from San Diego County as is otherwise permitted by California Code
of Civil Procedure Section 394. 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.
OWNER: McCENZA 8, LLC
a California limited liability company
By: McCenza Holdings, LLC
a Delaware limited liability company
its Memb
By. Date: /f 3v /
Thomas C. McComic /
Its: Member
(Signature Must Be Notarized)
SWMFMA Toothrock Lot 1 (MDRA16-023) Page 4
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document.
State of California
County of Salt .3;0.41 J )
On I)c,Nn'It i Rn —011 before me, �Itxxnn a ,'Y' nni y n (7i tr� 'Pt/ i1,
Date Here Insert Name and Title of the Officer
personally appeared I lit OM c (kr;stu1DVte/1 of')C (om i(.
Name(s)of Signer(s)
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.
YVONNE MANNION WITNESS my hand and official seal.
Notary Public-Catlfomia t
{• San Cgeyo County
trio commission.7201766
Signature ,,,.I.ZL kl einn 'O
MyComm.Wires Jun 1e 3071 g A Signature of Notary Public
Place Notary Seal Above
OPTIONAL
Though this section is optional, completing this information can deter alteration of the document or
fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Signer's Name:
❑Corporate Officer — Title(s): 0 Corporate Officer — Title(s):
❑Partner — 0 Limited 0 General 0 Partner — ❑ Limited 0 General
❑Individual 0 Attorney in Fact 0 Individual ❑Attorney in Fact
❑Trustee 0 Guardian or Conservator 0 Trustee 0 Guardian or Conservator
❑Other: 0 Other:
Signer Is Representing: Signer Is Representing:
02016 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY(1-800-876-6827) Item#5907
CITY OF POWAY: O /
lam/9 Date: (O O
o ert J. Ma /
Director of Development Services
APPROVED AS TO FORM: APPROVED AS TO CONTENT:
Office of the City Attorney Engineering Division
7/Ir
Alan Fenstermacher, City Attorney Thomas R. Frank, P.E.
City Engineer
Attachment
A. Parcel Legal Description
B. Parcel Site Plan
C. Operations and Maintenance Plan
D. Certificate of Acceptance
M:lengserv1Land Development Projects120161SWFMA Projects Without Grading\ToothrockwwDRA16-023 Toothrock Lot 1 SWFMA.docz
SWMFMA Toothrock Lot 1 (MDRA16-023) Page 5
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document.
State of California
County of San Diego
On Jilt 1 alp) before me, Yvonne Mannion Notary Public
Date Here Insert Name and Title of the Officer
personally appeared 1?D ilea ) • i'afl%S
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the persons) 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
YVONNE MANNION of the State of California that the foregoing
i erryt�.--1. Notary Public-Cnlitornia 9 9
,:ti,jyr�^ San Diego County is true and correct.
,yy.�' Commissions 2101166
Q _ •• My Comm.Expireslun16,2021 WITNESS my hand and official seal.
•
Signature o"-,)
Signature of Notary Public
Place Notary Seal Above
OPTIONAL
Though this section is optional, completing this information can deter alteration of the document or
fraudulent reattachment of this form to an unintended document.
Description of Attached Document(
Title or Type of Document: \t--.1m cmH !Mize Ih-D2,3
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Signer's Name:
E l Corporate Officer — Title(s): 0 Corporate Officer — Title(s):
❑Partner — 0 Limited ❑General ❑ Partner — ❑ Limited ❑ General
❑Individual 0 Attorney in Fact ❑ Individual 0 Attorney in Fact
C Trustee 0 Guardian or Conservator ❑Trustee ❑Guardian or Conservator
0 Other: 0 Other:
Signer Is Representing: Signer Is Representing:
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ATTACHMENT A
LEGAL DESCRIPTION
LOT I OF CITY OF PO WAY TRACT MAP 03-04, IN THE CITY OF POWAY,
COUNTY OF SAN DIEGO. STATE OF CALIFORNIA. ACCORDING TO MAP
NO.15683, FILED IN THE OFFICE OF COUNTY RECORDER OF SAN DIEGO
COUNTY. APRIL 16, 2008 AS FILE NO. 2008-0202593 OF OFFICIAL RECORDS.
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PREPARED BY: . O 33730
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WILLIAM C. YFLN✓ RCE 33730
PERMANENT STORMWATER BMP MAP
APN 321-100-43
LOT 1, TOOTH ROCK ROAD
o POWAY, CA 92064
ATfACHMENT B
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ATTACHMENT C., STRUCTURAL 13MP MAINTENANCE INFORMATION
f310FIL f RATION
Typical Maintenance Maintenance Actions Frequency
Indicator(s) for Vegetated
BM Ps
Accumulation of sediment. litter, Remove and properly dispose of accumulated After storm
or debris materials, without damage to the vegetation. event
Poor vegetation establisment Re-seed, re-plant, or reestablish vegetation per Monthly
original plans.
Overgrown vegetation Mow or trim as appropriate, but not less than the Monthly
design height of the vegetation per original plans
when applicable (e.g. a vegetated swale may require
a minimum vegetation height).
Erosion due to concentrated Repair/re-seed/re-plant eroded areas and adjust the Upon inspection
irrigation flow irrigation systeni.
Erosion due to concentrated storm Repair/re-seed/re-plant eroded areas, and make Upon inspection
water runoff flow appropriate corrective measures such as adding
erosion control blankets, adding stone at flow entry
points, or minor re-grading to restore proper
drainage according to the original plan. If the issue
is not corrected by restoring the BMP to the original
plan and grade.The county must be contacted prior
to any additional repairs or reconstruction.
Standing water for longer than 96 Make appropriate corrective measures such as After storm
hours Hollowing a storm event adjusting irrigation system, removing obstructions event
of debris or invasive vegetation, clearing under
drains(where applicable), or repairing/replacing
clogged or compacted soils.
Obstructed inlet or outlet structure Clear obstructions Monthly
Damage to structural components Repair or replace as applicable Monthly
such as weirs, inlet or outlet
structures
Loss of3" mulch layer Replenish mulch layer to maintain 3" layer for Upon inspection
proper treatment and designed ponding depths
ACCESS TO BMPs
Access to 13MPI (biofiltration) will be from an existing cul-de-sac at the end ofToothrock Road and
traversing up a proposed driveway approximately 1701. The path of access will be from the property's
existing driveway, along the southwest side of the property where BMP I will be accessible from said
driveway. Access to 13MP2 (biofiltration) will be from said existing cul-de-sac at the end of Toothrock
Road, where the bmp will be located approximately 17'and is readily accessible from said cul-de-sac. See
Attachment IC, DMA Map.
FEATURES FOR INSPECTIONS
BMPI will be fitted with a 3'x3'catch basin with a hydromodification orifice located on the inside. Ease of
inspection will come from an open grate that can allow for visual inspections. Also, the catch basin will
have access to allow for ease of entering for physical inspection. BMP2 will be fitted with a 2:x2' catch
basin with no hydromodification. Inspection will be facilitated by an open grate in kind as BMPI. for both,
the under drains leading to the catch basins will be fitted with cleanouts in cases where clogs may occur
uphill from the catch basin access points. Any obstructions to the grate can be accessed from the surface of
the BMPs and visual inspection of BMPs' vegetated media can be corrected from the surface. Replenishing
of the 3" mulch layer should be performed routinely upon inspection.
RECOMMENDED EQUIPMENT TO PERFORM MAINTENANCE
Equipment to be used on the BMPs should be light in weight or hand held equipment so as to avoid
damaging the soils media or vegetative growth. If light weight machinery is to be used, work should he
done so as to avoid more damage to the 13MPs and minimal reconstruction should be done so as to restore
the BMPs to properly functioning conditions. After work is done with light machinery, allowing the soils
media to revegetate per landscaping recommendations should be allowed.
TRAINING AND CERTIFICATION
All training and certification for the vegetation and soils media to be under the guidance of the landscaper
and by City of Poway standards. The design implementation is to be done per grading plans and by civil
engineering design under the inspection of the City of Poway.
ATTACHMENT D
CERTIFICATE OF ACCEPTANCE
q IN TNt CUVc
Storm Water Management Facilities Maintenance Agreement
This is to certify that the interest in real property located in the City of Poway conveyed by the
Grant of Easement described in Item 4 of the attached document dated: 11/30/2017, from
McCenza Eight LLC, to the City of Poway, a political corporation and/or governmental agency,
is hereby accepted by the undersigned officer or agent on behalf of the City Council pursuant
to authority conferred by Resolution No. 17-007 adopted on April 18, 2017.
Dated: W51/ I CITY OF POWAY
By:
1,41
•✓
•bert J. Ma is
Director of Development '-rvices
SWMFMA Toothrock Lot 1 (MDRA16-023)