Storm Water Management Facilities Maintenance Agreement 2019-0557958RECORDING REQUESTED BY:
CITY OF POWAY
AND WHEN RECORDED MAIL TO:
CITY CLERK
CITY OF POWAY
P 0 BOX 789
POWAY, CA 92074
DOC# 2019-0557958
0 557958
1 11E1111111Ni 11110 111E011111i 011 N1111E111 1111
Dec 02, 2019 12:06 PM
Dec 02, 2019 12:06 PM
OFFICIAL RECORDS
Ernest J. Dronenburg, Jr.,
SAN DIEGO COUNTY RECORDER
FEES: $0.00 (SB2 Atkins: $0.00)
PAGES: 13
(THIS SPACE FOR RECORDER'S USE)
APN: 277-010-15
STORM WATER MANAGEMENT FACILITIES
MAINTENANCE AGREEMENT
Affleck Single -Family Residence
(G17-0009)
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(s) Affleck Family Trust dated October 18, 2017, (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 Exhibit "A", hereto (hereinafter referred to as the "PROPERTY"), which
is being developed into a single-family residence, in accordance with the Minor Development Review
Application 16-050 and Grading Permit Number G17-0009, 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 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":
One biofiltration basin onsite and landscape areas throughout the site as shown in Exhibit "B".
The precise location(s) and extent of the BMPs are indicated in the approved Storm Water Quality
Management Plan, dated June 19, 2018, and on the approved grading plans on file with CITY's
Development Services Department as G17-0009. The manner and standards by which the BMPs
must be repaired and maintained in order to retain their effectiveness and the approximate location of
the BMPs are as set forth in the Operation and Maintenance Plan (hereinafter "O&M PLAN"), which is
attached hereto and incorporated herein as Exhibit "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
SWMFMA (G17-0009) Page 2
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, 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
SWMFMA (G17-0009) Page 3
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 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: AFFLECK FAMILY TRUST, Dated October 18, 2017
Bv:
Rhett Ly n Affleck
Its: Trustee
Date:
(Signatures must be notarized)
SWMFMA (G17-0009) Page 4
CALIFORNIA ALL- PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
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 ° �� ��1� � 5 . (PAS before me, Ana Marie Alarcon, Notary Public
(Here insert name and file of the officer)
personally appeared Pb�At ILi who proved to me on the basis of sasfactory 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.
Nota
•
Public Signature
(Notary Public Seal)
•
ANA MARIE ALARCON
Commission No.2120463 c
• a NOTARY PUBLIC -CALIFORNIA 2;
SAN DIEGO COUNTY
My Comm. Expires JULY 23. 2019
ADDITIONAL OPTIONAL
•
INSTRUCTIONS FOR COMPLETING THIS FORM
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(Title)
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CITY O F POWAY:
Robe J. Manis
Director of Development Services
APPROVED AS TO FORM:
Office of the City Attorney
Al riFenstermacher, City Attorney
Attachment
1. Certificate of Acceptance
M:\engsery\engsery\eng forms\Land Development Forms\SWFMA.docx
SWMFMA (G17-0009)
Date:
21 /t
APPROVED AS TO CONTENT:
Engineering Division
Steven Crosby, P.E., City Engineer
Page 5
CERTIFICATE OF ACCEPTANCE
(Storm Water Management
Facilities Maintenance Agreement)
GI 7-0009
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 g c)-0 0 g
from the Affleck Family Trust dated October 18, 2017, 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: litZ1
CITY OF POWAY
By:
rt J. Mani
Director of Development es
SWMFMA (G17-0009) Page 6
/"Th s
CERTIFICATION OF TRUST
TO:, ALL .FINANCIAL INSTITUTIONS, MUTUAL FUND ADMINISTRATORS, TITLE
INSURERS, TRANSFER AGENTS, AND OTHER PERSONS AND INSTITUTIONS
The undersi ed. desire to .confirm the establishment of a revocable 'livin ; trust: named;
.gn :.. g ,
THE: AFFLECK FAMILY TRUST (heremafter referred. to as the "Trust").., The. `fo llowing
provisions are found in said Trust and may be relied upon as a full statement of the �mafiters
covered by such provisions by anyone dealin with the .ori �al �co-Trustees. or their successors.
CREATION OF TRUST
The Trust was- created concurrently herewith by a Trust Agreement executed by the
undersigned As "Trustors and co -Trustees for the, benefit 'of the undersigned'during their _ j.oint
lifetimes, thereafter for' the lifetime benefit of the. survivor, and ultimately forthe benefit of other
successor benefiiciaries-:in. interest.
NAMEOFTRUST
The name:- of- the Trust is THE AF
FLECK FAMILYTRUST. Any assets 0: 400
.of the Trust should. be titled :in substantially the1011owing.mannen RHETT LYMAN AFFLECK.
_and. KATHRYN MARIE .AFFLECK, as co_ -Trust ees THE AFFLECK FAMILY TRUST,. U/A
;dated October 18, 20:17.
.TRUSTEE
currently actin co Tru
The- � � .. � � � �:g � � - � � `stew of the Trust are RHETT LYMAN AFFLECK. and
KATHRYN MARIE .AFFLECK...If either of said co -Trustees shall cease to act, for any. reason-
_.. any. rear
n,
other shall ac(as sole Trustee of the Trust. In the event. that both cease to 'act for any reason,.
they shall be succeeded by RHYS AFFLECK as the ,successor Trustee. If said successor Trustee
fails to qualify or ceases: to act; CAL AFFLECK shall act as the -alternate successor .Trustee.
SIGNATURE AUTHORITY
While both Trustors are actin- � as co -Trustees, onlyone signature shall be required uired to
. g - � q
conduct . business with respect to property and/or assets held or owned by the Trust. Any third
party dealing with the Trust may rely upon this singular authority without any further evidence.
Any Trust asset may be titled to reflect this authority, including the designation "and/or".
REVOCABILITY OF TR UST
The Trust is revocable. The persons holding the power to revoke or amend the Trust are
RHETT LYMAN AFFLECK and KATHRYN MARIE AFFLECK.
Certification of The Affleck Family Trust
EXHIBIT A
LEGAL DESCRIPTION OF OWNER PROPERTY
THE SOUTHERLY 360.70 FEET OF THE EASTERLY 368.36 FEET TO THE NORTH
HALF OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF
SECTION 18, TOWNSHIP 13 SOUTH, RANGE 1 WEST, SAN BERNARDINO BASE
AND MERIDIAN, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF.
ASSESSOR'S PARCEL NUMBER: 277-010-15
Page 1 of 1
EXHIBIT '8'
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LEGEND
PROPERTY BOUNDARY
SELF-M171GATlNG LANDSCAPE AREAS
ROOF AREAS DRAINING TO INTEGRATED MANAGMENT
PRACTICE (B/ORETENT1ON BASIN)
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40'
80'
GRAPHIC SCALE:
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EXHIBIT C
AFFLECK RESIDENCE
CITY OF POWAY GRADING PLAN G17-0009
Permanent BMP Operation and Maintenance Plan
August 13, 2018
Overview
The Affleck Residence project, City of Poway ("City") Minor Development Review Application
No. 16-050, Grading Plan No. G17-0009, is comprised of a proposed single family detached
residential structure on a proposed split level building pad, with an additional detached two -car
garage and minor driveway and other associated site improvements, on private property located
within the City. In accordance with City of Poway requirements and as part of the grading permit
process, a Storm Water Quality Management Plan (SWQMP) has been prepared for the project,
which describes certain onsite Best Management Practices (BMP) improvements that will be
utilized for water quality treatment. One of the requirements of the SWQMP is documentation of
the specific installation, operation and maintenance requirements for the proposed permanent
BMP improvements for the project.
Accordingly, this Operation and Maintenance Plan (OMP) has been prepared to meet this
requirement for the SWQMP.
Landscape Areas
All of the areas of proposed onsite landscaping for the project have been identified in the
SWQMP and on the Grading Plans ("Plans") as Self -Mitigating Areas for purposes of water
quality treatment. These landscape areas shall be constructed, operated, and maintained under
the following guidelines:
1. The landscape areas, including swales, check dams, and berms, shall be constructed to the
grades shown on the approved Plans where applicable. The grading shall be done in
accordance with the grading specifications for the project. Soils shall not be excessively
compacted nor left in a loose condition.
2. The landscape areas shall not be re -graded in the future, nor shall earth or other materials
be brought into the landscape areas, in such a manner as to significantly alter the grades or
drainage patterns as originally designed and constructed.
3. Landscape areas which are not covered in vegetation, shall be covered with rock, mulch,
crushed gravel, or similar materials, in order to avoid bare, unprotected soils.
4. Irrigation of the landscape areas shall be accomplished using Efficient Irrigation Systems as
described in the SWQMP, in order to avoid overwatering, watering during rain events, or
potential erosion due to excess runoff from broken sprinkler heads or lines.
5. The private drainage system shall be installed per the specifications on the approved Plans,
and in the locations and elevations shown on the Plans.
Page 1 of 3
6. The private drainage system, including drainage inlets and catch basins, shall not be
modified in any manner in the future, so as to alter the types, sizes, locations, or elevations
of inlets and catch basins from those which were originally designed and installed.
7. Should any of the drainage system components require repair or replacement in the future,
they shall be replaced in the same locations and elevations as originally installed, and with
the same or similar types and sizes of drainage system materials and components.
8. The landscape areas shall be inspected on a quarterly basis at minimum, for the health and
stability of vegetation. Dead or unhealthy vegetation should be replaced on a regular basis
after each inspection.
9. The landscape areas, in particular areas around drainage system inlets and catch basins,
shall be regularly maintained to avoid buildup of excess leaves, dead vegetation, or other
debris that could hinder or alter the effectiveness of the treatment areas.
10. The landscape areas and drainage system inlets and catch basins should be visually
inspected after each rain event producing a half-inch of rain or more, for any signs of
erosion or unusual accumulation of sediment or debris. Any required repairs should be
completed prior to the next such storm event if possible.
11. The landscape areas should be periodically inspected for positive drainage and/or standing
water and vector control. Any areas observed to trap standing water shall be re -graded or
repaired as necessary to ensure proper drainage per the original Plan.
Bioretention Basin
A proposed bioretention basin has been identified in the SWQMP and on the Plans as a BMP
for the specific treatment of roof storm runoff. The bioretention basin shall be constructed,
operated, and maintained under the following guidelines:
1. The bioretention basin shall be graded and constructed to the size and grades shown on the
approved Plans. The grading shall be done in accordance with the grading specifications for
the project.
2. Native soil at the bottom of the basin should not be excessively compacted or "smeared"
during excavation of the basin. Should excessively compacted soil be encountered at the
bottom of the basin excavation, the soil should be scarified to a depth of one foot below the
bottom of basin, prior to placement of rock and soil within the basin.
3. The bioretention area shall not be re -graded in the future, nor shall earth or other materials
be brought into the bioretention area, which could significantly alter the grades, drainage
pattern, and/or water storage capacity of the basin.
4. No filter fabric or membranes should be installed in the bioretention basin.
5. The rock (gravel drainage layer) shall meet the specifications per the approved Plan, and
should be dumped and spread evenly to the specified depth without compaction.
6. The soil media shall meet the specifications per the approved Plan, and shall be dumped
and spread to the specified layer depth without being excessively compacted.
7. The bioretention basin shall be planted with grasses, shrubs, and/or trees that can withstand
short periods of saturation (ie, 12 to 72 hours) as well as long periods of drought. Temporary
irrigation may be required during the plant establishment period.
8. Landscaping within the bioretention basin shall be inspected on a semi-annual basis at
minimum, for the health and stability of vegetation. Dead or unhealthy vegetation should be
replaced on a regular basis after each inspection.
9. The bioretention basin shall be regularly maintained to avoid buildup of excessive leaves,
dead vegetation, or other trash or debris that could hinder or alter the effectiveness of the
basin. The inlet and outlet areas of the basin should be kept clear of any buildup of excess
leaves, vegetation or debris which could impair flows in and out of the basin.
Page 2 of 3
10. The bioretention basin should be visually inspected after each rain event producing a half-
inch of rain or more, for any signs of erosion or unusual accumulation of sediment or debris.
Any required repairs should be completed prior to the next such storm event if possible.
11. The bioretention basin should be observed periodically (at least once per year) during a
moderate rain event to observe for general infiltration of runoff into the soil system.
12. All roof drains for the residence, attached garage, and detached garage shall drain to the
bioretention basin as shown on the approved Plans. The roof drains, along with the catch
basin and outlet pipe for the basin, shall be regularly maintained to keep them free of silt,
vegetation, or other debris that could hinder flow.
Responsible Party
The owner of the property shall be the responsible party for implementation of the installation,
operation, and maintenance requirements for the described onsite permanent BMP landscape
and bioretention improvements. All costs associated with the installation, operation and
maintenance of the permanent BMP's shall be borne by the owner of the property. These
requirements as responsible party shall transfer to the new ownership in the event of sale of the
property in the future.
Record Keeping
The owner of the property, or an assigned representative, shall keep records of the installation,
operation, and maintenance of the permanent BMP's as described above, including inspection
records. These records shall be maintained for a minimum of five years, and shall be made
availableto the City, the State Water Resources Control Board, or any other authority regulating
storm water discharge, for their inspection upon request at any time during this period.
Page 3 of 3