Storm Water Management Facilities Maintenance Agreement 2009-0215579
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DOC # 2009-0215579
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RECORDING REQUESTED BY,
.CITY Of PC,JWAY
AND WHEN RECORDED MAIL TO
APR 27. 2009
11:06 AM
OFFICLo.L F:ECORDS
'i.oll ['IECiO '-'-'UIH'( RECORDEF:',., IIFFICE
['AVID L. BUTLER. LOUflTY F:ECORDEF:
FEES. 40.00
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CITY CLERK.
CITY OF POWAY
P OBOX789
POWAY, CA92074
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PAGES: II
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(THIS. SPACE FOR RECORDER'S USE)
APN: 317-810-19
STORM WATER MANAGEMENT FACILITIES
MAINTENANCE AGREEMENT
No. Documentary Transfer Tax Due
ANYTIME TOWING STORAGE &PARKING EXPANSION
13830 DANIELSON STREET
This AGREEMENT for th'e maintenance and repair of certain Storm Water Management
Facilities is entered ihto betweEln'Shultz Real Estate, LLC (hereina,fter referred to as "OWNER")
and the City of poway (hereimifter referred to as "CITY") for the benefit of the CITY, the
OWNER, the successors in interestto the CITY or the OWNER, and the public generally.
WHEREAS, OWNER is the owner of certain real property located in the City of Poway,
Califorriia', more particularlydescribeq in Exhibit "A" hereto (~ereinafter referred to as the
"PROPERTY''), and has proposed that the PROPERTY be developed as an automobile towing
and storage business in accorda'nce with applications for, Development Review Permit No. '95-
19R and Conditional Use Permit No. 95-10M and Grading Permit No. G 1590-07, 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 SLJbd_iyi!;ion Ordinal)ce,'the City of Poway Zoning 9r,dinancE.'l' the City of poyvay Gra,ding
Ordinance andlor other ordinances or regulations of .CITY which regulate land development.and
urban runoff, OWNER has proposed that storm waterrunoff.from"the PROPERTY be managed
by the' use of the following Storm Water Management Facilities which are identified as "Best
Mar)agement Pradites,;,'or "BMPs" (list al/ required BMPsby type and general location)
Sand'Oil"Separator Unit
The precise location(s) and extent of the BMPs are indicated on Grading plan G 1590-01; dated
May 21" 2008' on file with CITY's Development Services Department as Anytime Towing
Storage and ParKing EXRansion. The manner and standards by which the BMPs must be
repaired and mai'ntained ihorder to retain their effectiveness are as set forth in the Operation
o Cf-- Dl.\ ~
and Maintenance Plan (hereinafter "O&M PLAN") which is attached hereto and incorporated
herein as Exhibit "B".
WHEREASi O\IVNER:srepresentations 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
dWNERand the OWNER's succes~ors 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 ManagementFacilitie!>.. 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 ofBMPs, 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 re(;ordsof 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's 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's 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. Noti(;es.. OWNER further agrees that it shall, prior to transferring ownership of any land
on which any of the above BMPs are located, and also prior to transferring ownership of
any such' BMP: I?rovide clear written notice of the above mainienance obligations
ass2ciated with.that BMP to the transferee. OWNER further agrees to provide evidence
to CITY that OWNER has requested the California Department of Real Estate to include
in the publiC: report issued for the 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 ()bligation, 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 ni'ay 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 i'l intends to or will perform any of the~AINTENANCE ACTIVITIES,
and any elesti()n py CITY to perform any of'theMflINTENANCE ACTIVITIES shall in no
way relieve bWNER' of its continuing mainten<ll!ce obligations under this agreement If
CITY elects t6 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, plus an, administrative fee. OWNER's
obligation to pay CITY's costs of performing MAINTENANCE ACTIVITIES is a
continLJing 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. Gr,!nt of Easement to CITY, OWNER hereby grants to CITY a perpetual easement
over, under and across alj of the PROPERTY as shown on Exhibit "C" attached hereto,
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 herebY1designates the City Engineer as
the officer charged with responsibility and authority to administer this Agreement on
behalf of CITY. Any notice or communication to CITY related to the implementation of
this Agreement shall be addressed to:
City Engineer
City ofpoway
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. D~fense and Irldemnity, 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, cilarges .or costs of any kind or character, including attorneys' fees and court
costs (hereinafter\collectively referred to as "CLAIMS"), related to this Agr~ement 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 onvillfgl,rTliscol)duct of CITY PARTIES. Nottling in this Agreement, CITY's
approval of the deVelopment application or plans:;and specifications, or inspection of the
work,isintended to acknowledge responsibility for'ahy such matter, and CITY PARTIES
shall have absolutely no responsibility or liability therefore unless otherwise provided by
applicable law.
7. Common ,Interest Developments, 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 provisions of this Paragraph 8 shall apply during such time as
the PROPERTY is encumbered by a "DECLARATION'" a's 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
Agreemeni, and .shallundertake all actions and 'efforts necessary to accomplish
the MAINTENANCE ACTIVITIES, 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 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-conducting the 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 limited to, 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 BMPs
to manage drainage or storm water runoff. In the event of any conflict between
the terms ofttlisAgreement 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 conaiti6nsherein contained shall constitute
covenants running with the land and shi!U 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
purchal)ing or otherwise acquiring all or any lot, unit or other portion of the PROPERTY,
who shail 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
coriveyance.6f'the PROPERTY or any portion Thereof shall in any way relieve OWNER
of oroiherwise 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' City Councilor the CITY Engineer
acting on behalf of CITY and by OWNER or OWNER's successor(s) in interest. This
Agre-ement 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
lo'nger necessary to assure such maintenance.
11. Governing Law an-d 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 Staieoi California, County of San Diego. In the event that any of
the provisions ofthis 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.
Shultz Real Estate, LLC, a California Limited Liability Company as owner.
OWNER:
---1YN_~.~~
Nancy . Shuitz
Date ~ \ G\ 0'1
Its:
Date:
CITY OF POWAY:
Date c;! 2tJ/tJe;
,
APPROVED AS TO FORM:
Office of the City Attorney
~GQ~
APPROVED AS TO CONTENT:
z;'~
Steven W. Cresswell, P.E.
Principal Civil Engineer
Lisa A. Foster, City Attorney
Attachments: EXHIBIT A
EXHIBIT B
EXHIBIT C
CALIFORNIA ALL-i'URPOSE ACKNOWLEDGMENT
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State of California
County of '" :0'# ,/}/ a D
On /fJ/IL/(P, Zf)()L )efore me, Phyllis Shinn. Notary Public
Dale #'~ Here lnserl Name and Title oj the Ofllcer
personally appeared /fAlCY.6. S II U L- T 2-
Name{s) ofSigner(s)
}
. PHYLLlI!IHINN
. .' . Commlaalon "'.718"8
I. , Notary PUb. lie . Cat..ilo. mlo .'
J . .San DIego County -
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who proved to me on the basis of satisfactory evidence to
be the person(~ whose name(::l}.is/ap>-subscribed to the
within instrument and acknowledged to me that
\<je/she/tl')f>y executed the same in I)(s/her/thl* authorized
capacity(i~ and that byt'ti/;/her/tl')S1r.signature(st on the
instrument the person(lJl, or the entity upon behalf of
which the personW-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.
PI?ce N.Ola~y Seal Above
Signature
OPTIONAL
Though the information below is not required 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 Docum~
Title or Type of DocumentSfoRI'Y1 . ff/m.ml!;t/A-(CJflFJ.fTi3tC!t.l77E::S!JJ?IK-;4//!~-~u)1cdT
Document Date: fJf1/21 L / lp, 200 C; Number of Pages: q
,
Signer(s) Other Than Named Above:
Capacity(ies} Claimed by Signer(s)
Signer's Name:
D Individual
D Corporate Officer -Tille(s):
D Partner - D Limited D General
D Attorney in Fact
D Trustee
o Guardian or Conservator
D Other:
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Signer's Name:
D Individual
D Corporate Officer - Tille(s):
D Partner - D Limited D General
D Attorney in Fact
D Trustee
D Guardian or Conservator
DOlher:
RIGHT.THUMBPRINT,
. DESIGNER
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Signer Is Representing:
Signer Is Representing:
~~~~~~~~~~~~~~~~~~~~~~~
@2007NationaINotaryAssociation.9350De Solo Ave., P.O. Box 2402 .Chatsworth. CA 91313.2402.www.NatronaINolary.org Item #5907 Reorder:CallToll.Free 1.800 876-6827
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CALlFORlNliA ALL.PURPOSE ACKNOWLEDGMENT
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State of California
County of ..SJ/V' b IE?;? D
On If/a I L Z I, 200q before me, Phyllis
Om, ' ~
personally appeared 0.(2, Ef2::r
}
J.
Shinn, Notary Public
Here Insert Name and Tille of the Officer
j/'V}q /VI 5
Name(s)ofSigner(s)
who proved to me on the basis of satisfactory evidence to
be the person(IQ whose nameOO is/~ subscribed to lhe
within instrument and acknowledged to me that
he/~/t% executed the same in hisJt;lerJt~authorized
capacity(i~, and that by hisJlj&/tl)'&Jr signature~ on the
instrument the person(~, or the entity upon behalf of
which the personOSl. 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.
Place Notary Seal Above
Signature
OPTIONAL
Though,the information below is not required bylaw, it may prove vafuable)o 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 f:&"q~ I)APJ!1!:Ji/III68)t;;rrFAC/ t-~
/f/;fI-;C . 'C~ &; eeM e- /
Document Date: Ill~ IL liP! 2-00 Number of Pages: ()
Signer(s) Other Than Named Above: ;J#,AlcY.J Sflwcrz, LrY-? A bTCR:.
'Sh~i/C,A/ LJ- CA.'~-ss wc?-L-
Capacity(ies) Claimed by Signer(s)
Signer's Name:
o Individual
D Corporate.Officer ~Title(s):
D Partner'- D Limited 0 General
o Attorney in Fact
D Trustee
o Guardian or Conseivator
D Other:
,
Top 01 thumb here
Signer's Name:
D Individual
o Corporate Officer - Title(s):
o Partner - D Limited D General
o Attorney in Fact
o Trustee
D Guardian or Conservator
o Other:
RIGHTTHUMBPRINT;
OF SIGNER
Top of thumb here
Signer Is Representing:
Signer Is Representing:
~~~~~~,~~:~.,~~~~~~'"~'.'~=~,:;~..~~~~~~~~~~'!;;;f.
@2007 National Notary Association. 9350 De Solo Ave., P.O. Box 2402. Chalsworlh, CA 91313.2402. W\I\W.NationaiNotary.org Item #5907 Reorder: Call Toil.Free 1-800 876 6827
EXHIBIT "1\;'
LEGAL DESCRIPTION
Lot 42 of Map'No, 12556 Hied in the Office of County Recorder of San Diego County,
California on February 8, 1990 as File No. 90-072267.
EXHIBIT '8'
Operation and Maintenance Manual
L Sand-Oil Separator
One sand'oil separator unit exists on the subject property and will be located the cnd of the
proposed cul-de-sac, as shO\vn on City of Po way Grading Plan G1590-07.
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jBAFI'tE OISFERSIONTUSEI
I. Operation
The sand-oil separator is designed to remove and capture stom1 water pollutants
through the use of its two capture zones. The storm water strcam enters the unit into
capture zone I and sedimentation of pollutants begins. Stonnwater, then, passes
over a weir plate attached to the bottom interior'ofthe unit. This effectively traps
and contains the heavier-than-water pollutants, such as, sediment and trash, which
have'settled out from the storm water stream in capture zone I. It should be noted
th?t sediments are the primary pollutants of concern for this project. Next; the
nll1off.(:iiters capture zone. 2. Here, floating and lighter tban water pollutants, such
as oil, grease'and.floating trash, are removed lromthe stom1 water stream. These
liglItedhan 'yater pollutants are trapped in the capture zone 2 by another weir plate,
which extends from the top interior of the linit From here, the cleaned stormwater
. exits't11e sand-oil separator unit and enters City of Poway stom1 drain system.
2. Maintenance
Periodic inspection and maintenance is essential to the proper functioning ofthe
sand-oil.separator unit I f well-maintained, it functions as an effective stonnwater
pollution treatment system; however, ifpcriodic maintenance is neglected, the
basirnnay not function properly and may cause problems.
'",'
The unitshould be inspcctedsemiannually bCefore the beginning and endofthc wet
scasorkinJ after eath major rain event. The following describes thc typical
irispection and maintenance routine:
The manhole covers arc removed on both thc capture zoncs I and2. The interior
of the unit now-can be checked for anyblockages and entire unit should be
inspected for damage. Sediment levels within capture zone I should be measured.
Thc sediment will tend to accumulate at its greatest depth near the weir plate. If
the sediment depth is nine inches or more, the sediment should be removed,
Capture zone 2 should also bc inspected. Any visible floating scum and debris
should be removed at this time. Cleaning of tile accumulated sediment in capture
zone 1 and the 'floating pollutants in capture zone 2 is often done with a vactor
truck and a pressure washer.
Material Disposal
Owners are responsible for complying with all federal, state, and local regulations
when disposing of material collected from the storm water quality unit and
underground detention pipe system. Water and sediment from cleanout procedures
should not he dumped;into sanitary sewer.
Hazardous' Wastes
Susp'ccted Hazardous wastes will he analyzed to detemline disposal options.
Hazardous materials generated on site will be handled and disposed of according to
local, state, and federal regulations. A solid or liquid \vaste is considered a hazardous
wasteifit exceeds:thecriterialisted in the California Code of Federal Regnlations,
Title 22, Ariiele II (Stite ofCalifol11ia, 1985).
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EXHIBIT 'C'
CITY OF POWAY CUP 95-10 & DR 95-19
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EASEMENT TO THE CITY OF POWAY OVER, UNDER. AND
ACROSS LOT 42 OF CITY OF POWAY TRACT MAP 87-13
AND MAP NO. 12556 FOR ACCESS, INSPECTION AND
MAINTENANCE ACTIVITIES, REFER TO PARAGRAPH 4 OF
THIS STORM WATER MANAGEMENT FACILITIES
MAINTENANCE AGREEMENT.
ENGR \ W00608 \ SU SMPMAINTENANCE\ EXH I BITC. DWG
PLOTTED: 03/25/09