Storm Water Management Facilities Maintenance Agreement 2009-0152486
DOC # 2009-0152486
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RECORDING REQUESTED BY:
MAR 26,2009 12:20 PM
CITY OF POWAY
OFFICI.~L RECORC";
~::~.6Jj [iIEGO C-OU(lT;/ RECORDER"; OFFICE
DAVID!. BUTLER, COUNTi FiECOFmER
FEE'3: 37,00
AND WHEN RECORDED MAIL TO:
CITY CLERK
CITY OF POWAY
P OBOX789
POWAY, CA 92074
((b~
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PAGES: III
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(THIS SPACE FOR R,ECORDER'S USE)
APN: 275-270-46'
STORM WATI;R MANAGEMEN:r FACILITIES
MAINTENANCE AGREEMENT
No Documentary Transfer Tax Due
G1568-07
This AGREEMENT for ,the maintenance and repair of certain Storm Water Manag~r:Dent
Facilities is entered into between,WILLlAM OLHAUSEN (h'ereinafter referred to as, "OWNER")
and the City of Poway (hereinafter rElferred to as "CITY") for tt)e benefit of the CITY, the
OWNER, the successors in interestto,the CITY or the OWNER, and the public generally,
WHEREAS,OWNER is the owner bfcertain real property located at 13703 Paseo Valle Alto in
the City of Poway, California, more particularly described iri Exhibit "A" hereto (hereinafter
referred to as the "PROPERTY"), and has proposed that tt)e PROPERTY be developed as
GARAGE & DRIVEWAY IMPROVEMENTS in accordance with applications for Minor
Development Re~iew Application 02:1Q, and Grading Perinit No,G1568c07, 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 Standar,d LJr,ban Storm Water Mitigation
. ., - ,,__. '.c',
Plan, poway Municipal Code, Chapter 16, Division VI (the "SUSMP Ordinance"), the City of
Poway Subdivision Ordinance;, the City of Poway Zoning Or<:jiriance, the City of poway Grading
Ordinance and/or other ordinances or regulations oIC/TY which regulate, land development and
urban runoff"OWNER,has proposed'thatstorm water runoidrom the PROPERTY be, managed
by theuseofJhe 'folloyving Slprm W<;iter Management Facilities which are identified as "Best
Mariagement Practices" or"BMPs" (list all requiredBMPs by type andgenera//ocation):
a)
FOS91L ,fILTER/FLOcGARD+PLUS DRAINAGE INSERTS FOR THE PROPOSED
CATCH'BAsiNS AT VARIOUS LOCATIONS, AS SHOWN ON APPROVED PLANS,
BIO-SWALE FitTER ON THE WEST SIDE OF THE DRIVEWAY ACCESS FROM
PASEO VALLE ALTO, AS SHOWN ON APPROVED PLANS, '
EXISTING DETENTION BASIN ALONG n:fE SOUTHERL YPROPERTY LINE,
b)
c)
The precise location(s) and extent of the BMPs are indicated on the RECORD DRAWINGS for
the project on file with CITY's Development Services Department 'as G1568-07, The manner
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and standards by, ,which the BMPs must be repaired arid maintained in order to retain their
effeCtiveness are as set.forthin the Operation and Maintenance Plan (hereinafter "O&M PLAN")
which is attached hereto andihcorporated herein as Exhibit ;'6';.. '
WHEREAS, OWNER's representations that theBMPs,will be maintained have been relied upon
by CITY in approving OWNER's development applications. ltis the purpose of this Agreement
to assure that the:BMPs are,maintained, by creating obli9CJti9Qsthflt are enforceable against the
OWNER and the.OWNER:s, sUccessors in interest in the PROPERTY, It is intended that these
obligations be enforceable notwitllstanding 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 Starm Wa.ter 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 SUSMP 0rdinance with regards to, the
maintenance of BMPs, and in particular agrees to perfohn",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 'ahJVe, at the times and in the man[1er specified in the O&M PLAN,
OWNER shall keep recordsoLthis maintenance andprovidecopies of such records and
annual certification of mflif1t~Qance as requested, by, CITY, OWNER shall. initiate,
perform and complete, all MAINTENANCE ACTI\fITIES at the required tifTle, without
request .or demand 'from CITY or any other agency, OWNER further agrees that
"MAINTENANCE ACTIVITIES" shall include replacement or modification of theBMPs 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 thaUt will be as effective ,as the failed BMP; and
(b) If the failure of tl1~e ,BMP, in the judgment of thEJGlTY's Engineer indicates that
the BMP'in use is inappropriate or inadequate to' the circumstances, the BMP
must be modifiep'or replGlced with a more effective BMP to prevent future failure
in the same or similar circumstances,
2, Natices. 0WNER furtherCjgrees 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
ahysuch BMP, provide dear written notice of the above maintenance obligations
associ.CJt,~d:~ith!th~t BMP tothe transferee, OWNER further agrees to provide evidence
to CITY Engmeer that OWNER has requested the California Department of Real Estate
to inClude in the public report issued for the deve'lopment of the PROPERTY, a
notification,regardingthe BMPmaintenance,requirements described herein,
3, CITY's Righqa Perform Maintenance. It is agreed.that CITY shall have the.right, but
notthe obligation, to elect;to perform any or all of the MAINTENANCE ACTIVITIES if, in
the CITY's'solejudgni'ent; OWNER has failed, to perform the same, Such maintenance
by the CITY shall ~EJ ;cgnducted in accordance with the nuisance abatement procedures
set .forth in Poway Municipal Code Chapter 8,72. In'the case ot"maintenance performed
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by thE:lCJT(,i\, [llayj~,eRerformed 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
iepreseritationthat it iiltends,to or will 'perform any'6f the MAINTENANCE ACTIVITIES,
and any eleCiion by CITY to perform any of the MAINJJ:NANCE ACTIVITIES shall in no
way-relieve OWNER ofits,contiriuing maintenance obligations under this agreement. If
81TY elects to perform any of the MAINTENANCE ACTIVITIES, it is understood that
CITY shail be deemed to be acting as the agent ofthe OWNER and said work shall be
without warranty or repre~eiltation by CITY as to safety or effectiveness, shall be
deemed to, be accepted by QWNER "as is", and shall be covered by OWNER's
indemnity' provisions tlelow,
If CITY performs any ofthe MAINTENANCE ACTIVITIES; after CITY has demanded that
OWNER perform the same arid. OWNER has failed to do so within a reasonable time
stated in the 'CITY's dern,an<;l:then OWNER shall pay all of CITY's costs inqurred in
pefforming the MAINTENANCE ACTIVITIES, plus anadmiriistrative fee, OWNER;s
obligation to pay CITY's costs of performing MAINT;ENANCE ACTIVITIES is a
coritirlUingobligation, i( OWNER fails to pay CITY\; costs for performing
MAINTENANCE ACTIVITIES, CITY may assess aliem 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, forp'urposes of acce'ssing 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 a,nypart of said area as maybe necessary or convenient for
such purposes, OWNER shall at all times maintain the PROPERTY so as to make
CITY's access clear and u'nobsfructed,
5, Administration of Agl'eementfor CITY. CITY hereby:designates the City Engirieer as
the officer charged with responsibility and authority to a<Jrninister this Agreeme,nt on
behalfof CITY, Any notice ,or communication to CITY related to the implementation of
this Agreement shall be addressed to:
City Engineer
City of Poway
13325 Cfvic:Center Drive
Poway, CA 92064
The. City E,ngineer is also granted authority to enter into appropriate amendments to this
Agre'ement oil behalf of CITY, provided that the amendment is consistent with the
purposes:of this Agreement as set forth above,
6, Defense arid hidemnity. 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
(c6I1ectively"CITY PARTIES"), against any and all C1aims,aemands,liability, judgments,
awards,fil1,es, me,chanic's liens or otherlien~, labor disputes, losses, damages,
expenses, charges or costs of any kind or character, including attorneys' fees and court
costs (hereinafter coJlectively referred to as "CLAIMS"), [elated to this Agre~ment 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
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employees, including, without limitation, claims caused, by the concurrent negligent act,
error Or omission, whetheractiireor passive; of CITY PARTIES, OWNER shall have ,no
obligation" hoWever, to defend or indemnify ciTY RAR'flES, from a claim if it is
determined by a court of corf1P~tent jurisdiction!h.at sLJch claim was caused by the sole
negligence or willful misconduct of CITY PAR11ES, ,Nothing in this Agreement, ,CITY's
approval of,the development application or plans and specifications, or inspection of the
- . ~ ,-. '.--
workisintended to acknowledge responsibility for,any.such matter, and CITY PARTIES
shall have, absolutely no' responsibility or liability therefore uriiess otherwise provided by
applicable law,
7, Com'mon' Interest' DevelopiTiimts. If the PROPERTY is' developed as a "Common
Interest Development" as ,defined in Civil Code ,~ection1351 (c) which will include
membership in or oWnership of an "ASSOCIATION:' 'as ,defined in Civil Code section
1351 (a), then the following prov(sions ,of this Paragraph 8 shall apply during such time as
the PROPERTY is encumbered by a "DECLARATION'; as defined in Civil Code section
1351(h), and the Common' Area, as "Common Area" is defined in Civil Code section
1351 (b), oflhe PROPERTY is managed and controlled by the ASSOCIATION:
(a) The ASSOCIATIOf>J, through its Board . of Dire~tors, shall assume' full
responsibility to perform the MAINTENANCE AC1'IVITIES pursuant to this
Agreement, and shall undertake all actions ahdefforts necessary:to accomplish
the MAINTENANCE A(;TIVITIES, includingtJut not limited to, levying r!lgular or
special assessments against each member of, the, ASSOCIATION sufficient to
provide funding for the MAINTENANCE ACTIVITIE8" conducting a vote of the
membership related to such assessments if required by law, In the event
insufficient votes have been obtained toauth6rize an assessment, the
ASSOCIA'j]ON' shalls,eek authority from a court of competent jurisdiction for a
reduced percenta~j'e, of:affirmative votes necessary to authorize the assessment,
re-conductil1gthe I(ot'e ()f the membership in,qrgerto pbtain the votes necessary
to authoriie'anassessment, and the ASSOCIATION shall take all action
authorizea by the DECLARATION or Califofnia law to collect delinquent
assessments, including but not limited to, the recording and foreclosure of
assessment liens,
(b) No provision ofthe DECLARATION, nor any other governing document of the
ASSOqATION or'grant of authority to its ,meml?ers, shall grant or recognize a
rightofany melTib.er'orother persqn to alteE; impr()ve, maintain ,orrepair'<1.oy ()f
the PROPERTY in any, manner which would impair the functioning. of the BMPs
t6 manage drainage or storm'waterrunoff" Inthe event of'.any conflict between
thetermspf ,this Agreement and theQE(;f,ARATION or otDer ASSOCIATION
governing documents, the provisions of this Agreement shall prevail.
8, Agr,eernentElinds'5uccessors and Runs With the PRbPERTY, It is understood and
agreed ;thatthe terms, covenants and conditions herein contained shall constitute
cov~n<1nts running ,with the land and shallbE3 bil1ding upon \he heirs, executors,
administrators: ,successors arid assigns of OWNER and CITY, shall be deemed to be'for
the penefit}of, ili h person,s owning any interestinth~ p'R9PE~TY (including the interest of
CITY or its successors in'the easement granted herein), It is, the intent of the,parties
hereto that this AgfElement shall be recordedahd shall be binding upon all persons
purchasing or otherwise'acquiring all or any lot, unit or other portion of the PROPERTY,
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SWMFMAOlhausen
who shall be, deemed', to have consented to and b,ecome bound by all the provisions
hereof,
9, OWNER's Continuing ,Responsibilities Where Work Commenced or Permit
Obtained, Notwith~tanding any other provision of this Agreement, no transfer or
conveyance of the P~bPERTY or any portiorltt)ereof shall in any way relieve OW~ER
of,or otherwise affecf,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 accounto( OWNER having obtained
a permil'which creates such obligations or having cbmnlenced grading, construction or
other iand disturbance, work,
10, Amendment 'and Release. The terms of this AgreelTl~nt may be modified only by a
written amendment 'approved and signed by the' City Councilor the CITY Engineer
actirlg 'on ,behalf of qlTYanfl by OWNER or OWNER',s'successor(s) in interest, This
Agreement may be 'terminated and OWNER and the PROPE~TY released from the
cov~nants set forth 'herein, :by a release, which CITY may execute if it determines that
arlother mechanism will 'assur,e 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, governed9Y the layvs of
the State of California, Venue in any action related tothisA!;jreement shall be.in the
Superior Court of the~tate:of California; County of San Di~go, In the event thatarlY of.
the provisions of this Agreement are held to be unenforceable or invalid by, any court of
competent jurisdictioQ, the validity, and enforceability of the rernaining provisions shall
notbe'affected thereby,
IN WIT~ESS WHEREOF, the
hereinafter.
parties have executed this Agreement on the dates set forth
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OWNER:
Date: .3 - !I-o'/
CITY OF POWAY:
Date: 3/12/0'7
,APPROVED AS:TO FORM:
Office oI the City Attorney
~QQ~
Lisa A, Foster, City Attorney
Attachments: EXHIBIT A
EXHri3i'rs
M:\engserv\sam\swmfma.olhausen,docx
5
CALIFORNIA ALl;,PURPOSE ACKNOWLEDGMENT
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State of California
}
County of 'San Diego
On ;lJ,1l?tll..,~? 200 q beiore me,
personally appeared [J I L- L-f /{/11
Phyllis Shinn, Notary Public
() L /141156::;;'" N.m, .n' Tit. ,f ", Offi,",
'Namo(s) 01 Sjgner(~)
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j~., ,',~.'," ,;PubIIC,_. ,.,~COlltcimla.-,' ,',' I
J'f4I/Ii 8on~ CCIUllIy
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who proved to me ,?n t~e b~sis of satisfactory evidence to
be the person()Qwhos."nameM is/a~ subscribed to the
wit~.in instrument ilnd acknowledged to me that'
he/Sjle/th~executedthe same in hislh\rldth\li( authorized
capacity(i~ and thattiY.'hislt\li!r!~signiliure~6n tne ,
instrument the person(~ or the entity upon ,behalf of
which the person(!?lacted, executed the instrument,
, I certify under PENALTY OF PERJURY under the :laws
of the State of Californfa1that ,the foregoing paragraph is
true and correct.
WITNESS
Place NotarY Seal Above
Signature
OPTIONAL
Though'the inforrriatio,nbelo,~ is nofreq9'red by la\lY, i/ may prove valuable.fopersonSJelyingon the document
andcciu.lcj prevent frilUdulenl removal add reattachment of this form'la,another document.
Description of Attached Document
-Title or Type 01 Document:,~rY]LJA17:7<. /J1cwI/&C /J1 EPrf/rc./Lfne rhJ/ ;fIfElt!,.fj//ar. , ,~
, ~' '( 20 'f " ';7'qK'Eclllvv/
Document Date:' C tf ' (., . 0 Number 01 Pages: /0
'115A Il /'oS~
, Signer(s) Other Than Named Above:
Capacity(les) Claimed by Si9Iler(s)
Slgner's',Name:
o Individual,
o Corporate Officer ~Tiile(s):: ,"
o Partner ~ 0 Limited O,Ge~,erar
o Attorney in Fact
o Trustee
o Guardian,or Conservator
o Other:
Top of thumb here
Signer'. Name:
o Individual
o Corporate 0fficer - Title(s):'
o Partner ~ OLlniitedO General
o Attorney in Fact
o Trustee
o Guardian' or, Conservator
o Other:
RJGHT~THUMBPRINT
....lOF SIGNER! .;".
Top'or thumb here
Signer Is'Repiesenting:
Signer Is Representing:
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02007 NatIOnal. No~ As:S0CI8~~. 9350 Og"S.oIo Ave.-, P.o.~ 2402!Chatsworth, CA 9131~2402. www.Na6onalNotafy.org."Item.~7AeordBr.CaIIToI-FrOO 1-8OO-l17~7
SWMFMA,Olhausen
EXHIBIT "A"
Lot 58, Green Valley Estates, Unit #03, Map No, 12467,
6
EXHIBIT "B"
Maintenance Specifications,for'Extended Detention Basin
The primary pollutant control BMP selected for this project is the extended detention
basin. The detention basin ,will control contamination by soluble pollutants by allowing
these, to ,slowly percolate below the subgrade and undergo a natural filtration p~ocess,
The water storage baSIn IS designed to store the design volume for a lQOcyear storm
during' the peak flow duration time and slowly release the clear water flow after the
peak has passed.
Inspection alld~o"itoring Requir:ements,
As briefly described, the, recommended detention R$lsin for this project is a one-stage
2.5~fdOt deep qet~ntion ~a~irl' wltll a storage volUme Qf ~025 cu. ft., and an outlet
works consisting ofacoriirOl:manhole witll a f1owconttol 10"PVC discharge pipe,
Following are the recommended operations and maintenance procedures for this
treatment BMP:
. Routine ~ctions
These are; ,to be implemented once during the wet'season and once' during the dry
season, or twice annually: '
, ,.
1) The basin side slopes must be planted Jar erosion protection. Average'
vegetation height shall not exceed 12" and emergence of trees or woody
vegetation must be monitored and removed. '
2) For slope stability, evidence of erosion must be corrected immediately.
3) Inspect for standirig water> 48 hours once after a storm event.
4) Inspect for trash and debris by visual obserVation arid a(j: as necessary.
5) Perfonn sediment management and characterization for removal annually.
6) Inspect for burrows, holes and mounds:once annually.
. GenerafMaintenance
A general maint;enan~ P.rocedure must be Perfonn~ semi;annllally to ensure the
ful'lcti(maliJ:Y<Ofth~lllleeaf'ld olJtlet strUctllres, indudingappurtenant structures, such as
pipings, manhole, catch basin, fencing and side'slopes.
SUSMP'Olhausen project
7 .
OnaoinaBMP Maintenance
Federal, State and Local Clean Water Act regulations,and those of insurance carriers
require that storm water filtration systems be mainfainedand serviced on a recurring
basis.
The iotept of the regl.fla~i()ns is to ensure that the systems, on a continuing basis,
efficieritly ,remove polhJt;:mts from storm water runoff thereby preventing pollution of
the nation's water resources,
-, .. .
,Maintel1anceSDetifications For Drainaae Inserts
FolloWirig.are the recornr:neh,ded general specifications,for the maintenance of the
Flogard+PlusCatch BasihF,i)ter Inserts: '
1. 1)1e service shall commence with collection and re(T1ovalof'sediment and
. debris (litter, leayes,iP<l~~, cans, etc.)andbr:oom~eepingaround the
drainageJlilet, Accumulated materials shall be placed in a DOT approved
container for later disposal. '
-' , . .
2. The catch basin shall be'visually inspected for defects and possible illegal
dumping. lfillegal dumping;hasoccurred, the proper authorities and property
owner representative shall"be notified as soon as:practicable.
3. The catch basin grate shall be removed and setto one side. Using an
industrialvaaJum(truck-mounted) the collected materials shall be removed
from the liner.
4. When all of the,collected materials have been removed, the ,filter medium
pouches shall; be removed by:unsnapping thetether n:omthe D-ring,and Set
to one side. The'filter)liner,gasl<et5; stall1l,ess~lift:amElandm()unting
brackets,~;.shalll,>e ihs~forcontinUed serviceability: 'Minor damage dr
defectS'fuUhCl shall,oo,cOrrected on"the-~ and a,hotationmade on the
~alnt:ellan$ f{~rd. ,MOre extenslvedei'i~d~tbat:affed:the effidencyof
thef"ilre.e{19rhliner)e1:c.), if C!pprov~,by ~p.r<>perty <>wner, will be
corrected and 'notation made on the, Malnt:em:llla! Record.
S. TIle filter ,i!iediUm\jXlUchesshcill be inspectedJor defec.ts and continued
servieeal>iiity and 'replated as necessary and the pouCh tethers re-attached to
thelineri's [);jng.
6. Thegrate'shalf be replaood.
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SUSMP OlhausenPi:oject
.0 & M Records
An operations and maint~nClrice record book must be kept by the Owner, including
schedules ofbperations and maintenance actions,
Mainten'ance Mechanisms
Mechanisms to ensure the ongoing or continuingactic>.ns foYthe required inspections
and necessary repairs of the drainage inserts and dete[lJionbasiri is by stipulating in the
Conditional Use Permitthe necessary maintenance coriditions, as follows:
. Preparation of a maintenance program, indudiriga Schedule of inspection and
maintenance procedures.
. Security may be required by the City at its discretion,
. Keeping of operation"and maintenance records'for at least 5 years.
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SUSMP'Olhauseri Project