Storm Water Management Facilities Maintenance Agreement 2008-0567499
,
DOC# 2008-0567499
1111111111111111111111111111111111111111111111111111111111111111111111
]RECORDlNG,REQUESTED BY:
OCT 30, 2008
9:59 AM
CITY OF POW A Y
CITY CLERK
CITY OF POW A Y
POBOX 789
POWA Y, CA 92074
'1
I~
OFFICIAL RECORDS
SA.l-1 DIEGO cuumy RECORDER'S OFFICE
GREGORY J SMITH, COUNT,' RECORDER
FEES: 37,00
AND WHEN RECORDED MAIL TO:
PAGES: 10
1~~Mrn~~~~~~~~~~ml
2623
(THIS SPACE FOR RECORDER'S USE)
APN: 277-080-09
STORM WATER MANAGEMENT FACILITIES
MAINTENANCE AGREEMENT
No Documentary Transfer Tax Due
The Heights Subdivision/Sunset Point Road & Sunset Ridge Court, east of Valley view Road
(
TTM 02-02 / G 1565-07
)
This AGREEMENT for the maintenance and repair of certain Storm Water Management Facilities is
entered into between the Property Owner(s) of the Heights Subdivision (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 ihinterest to the CITY or thc 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 "N" hereto (hereinafter referred to as the "PROPERTY"), which is a
subdivision consisting of individual residential lots, in accordance with applications for Tcntative Map
No, TTM 02-02, and Grading Permit No, G 1565,07 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
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" (list all required 8MPs by type and generalloeation):
ALL ROADSIDE SUSMP DETENTION AND TREATMENT BASINS, TOGETHER WITH
ASSOCIATED DRAINAGE IMPROVEMENTS,
The precise I()cation(s) and extent ofthe.BMPs are indicated on the project grading and drainage plans,
dated 4/16/07, on file with CITY's Development Services Department as G 1565-07, 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 Operations and Maintenance Plan (hereinafter "O&M PLAN"), which is attached hereto
and incorporated herein as Exhibit "B",
CJ6-0..0
2624
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 ofthisAgreementto 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 appiications and (b)
the mutual covenants set forth herein, IT IS HEREBY AGREED AS FOLLO\\S:
\, 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 requirementsof
the SUSMP Ordinance with regards to the maintenanceofBMPs, 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, withoutequest 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 offailure, 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 ifhe or she determines
that it will be as effective as the failed BMP; and
(b) If the failure ofthe BMP, in the judgment ofthe City Engineer, indicates that the BMP in use
is inappropriate or inadequate to the circumstances, the BMP must b6l10dified or replaced
with a more effectiveBMP to prevent future failure in the same or similar circumstances,
2, Notices. OWNER further agrees that it shall, priorto 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 ofthe 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 contractorhircd by the CITY, at the CITY's soleelectioJ1.'lt 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 indemnityprovisions below,
If CITY performs any of the MAINTENANCE ACTIVITIES, after CITY has demanded that
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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, ffOWNER 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, GrantofEasementto CITY, OWNER hereby grants to CITY a perpetual easement over, under and
across that portion of PROPERTY shown in Exhibit C, for purposes of accessing the 8MPs,
inspecting the 8MPs, and performing any of the MAINTENANCE ACTIVITIES specified in
Paragraph I 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 ofClTY, Any notice
or communicationto the'City related to the implementation of this Agreement shall be addressed to:
City Engineer
City of Po way
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 (hereinaftercolloctively referred to as "CLAIMS"), related to
this Agreement and arising either directly or indirectly from any act, error, omission or negligenceof
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 ifit is determined by a court of competent jurisdiction that
such claim was caused by the sole negligence or willful misconduct of CITY PARTIES, Nothing is
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 responsibilityor 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 cqual 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, administratOls, successors and assigns of OWNER and
CITY, shall be deemed to be for the benefit of all persons owning any interest in the PROPERTY
2626
(including the interest of CITY or its successors in the easement granted herein), It is the intent ofthe
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 ofthe 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,
Notwithstandingany other provision ofthis 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 installationormaintenanceofBMPs which may have arisen under the ordinances
'or regulations of CITY referred to.in this Agreemen~ or other-federal, state orCITY 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,
II, 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 ofthe State of
California, County of San Diego. In the event that any ofthe provisions of this Agreementare held to
be unenforceable or invalid by any court of competent jurisdiction, the validity, and enforceabilityof
the remaining provisions shall not be affected thereby,
IN WITNESS WHEREOF, the parties have executed this Agreement <II the dates set forth hereinafter,
For Property Owner:
t[(lQ~L;~L Date: 1O(1(oi
S. Eric Ottesen
1 (J vt~
BBA Partners, LLC
Its:
For CITY OF POW A Y:
Date: lo/t5~~
, .
Its:
D'irector of Development Services
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APPROVED AS TO FORM:
Lisa A oster, CitY Attorn y
Attachments: EXHIBIT A
EXHIBIT B
EXHIBITC
M:\engserv\OOO doctemplates\Storm Water Facilities Agmt (subdivision).doc
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2628
CALlFORNIAALL.PURPOSE ACKNOWLEDGMENT
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State of California
County of
personally appeared
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I NoIary P\.IbIIc . CCIIIIomta f
Ban IlIlIgo CounIy' -
_ _ _ ~~_~~1~~
Place Notary Seal Above
OPTIONAL
Though the information below is not required by Jaw, it may prove vaJuableto persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of AUached Document, 1
Title or Type of Document~ 4Jd...Il{~-f--::1Q ,;..l';;/;: ~ > 71(~QA1 ""'-' Q~
Document Date: fa - 9- 0 R Number of Pages: c:r
Signer(s) Other ~han Named Above: It) (A
I
Capaciiy(ies) Claimed by Signer(s)
Signer's Name;S. EI'I::" G-Jf 'e.-s"U"'J
D Individual
D Corporate Officer - Title(s):
)Q Partner - )iQ Limited D General
D Attorney in Fact
D Trustee
o Guardian or Conservator
D Other:
who proved to me on the basis of satisfactory evidence to
be the persontlO whose' nameOi)@at,e subscribed to the
within instrument and acknowledged to me that
~sf'\elt~y executed the same in@tWr/tOreir authorized
capacity~), and that by~,*r/~Ir signature(lC) on the
instrument the person(!l4, or the entity upon behalf of
which the person~ 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;n~ hand ~nd official seal. .
SignaturV~- ~ q ~1 ;;f-...t-.
Sigrlature of, Notary Public .
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Signer's Name:
D Individual
D Corporate Officer - Title(s):
D Partner - D Limited D General
D Attorney in Fact
D Trustee
o Guardian or Conservator
DOther:
Signer Is Representing:
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, EXHIBIT 'A'
LEGAL DESCRIPTiON
PARCEL 1
PARCEL A OF BOUNDARY ADJUSTMENT NO, BA05-07 RECORDED JUNE 1,
2006 AS, INSTRUMENT NO, 387392, AND MORE P ARTlCULARL Y DESCRIBED
AS FOLLOWS:
PARCEL 2 TOGETHER WITH A PORTION OF PARCEL 1 OF PARCEL MAP NO,
1648, IN THE CITY OF POWAY, COUNTY OF SANDIEGO, STATE OF
CALIFORNIA, ACCORDING TOPARCEL MAP THEREOF FILED IN THE OFFICE
OF THE"COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 20, 1973 AS FILE
NO, 73-169595 OF OFFICIAL RECORDS, PORTION OF PARCEL I DESCRIBED AS
FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF SAID PARCEL 1; THENCE
ALONG THE EAST LINE OF PARCEL 1, SOUTH 2059' 04" WEST (SOUTH
3012' 13" WEST PER P,M"T648), 670,89 FEET; THENCE NORTH 32057'09" WEST
570,93 FEET; THENCE NORTH 54003'32" WEST, 307.38 FEET TO A POINT ON
THE NORTH LINE OF SAID PARCEL 1; THENCE ALONG SAm NORTH LINE
NORTH88059'23" EAST (NORTH 89012'02" EAST PER P,M, 1648),594.44 FEET
TO THE POINT OF BEGINNING,
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EXHIBIT 'B'
Operation and Maintenance Manual
I. Detention Basin
Three detention basin exist on the subject property, APN 277-080-09 and can be located the
provided reference map"sheet 3 of 3 of this exhibit and in more detail on City of Po way
Grading Plans G 1565-07,
I, Operation'
The dctention basin has no mechanical or moving parts to be operated, The basin is
designed to capture and detain stonn water runoff functioning both as flood control
and a pollutant treaiment system by to allow pollutants to settle of this detained
stonn water and then slowly drain away the captured runoff automatically by use of
arelative1y small, outlet pipe over several hours up to 48 hours, if the system is well-
maintained, Since the basin functions automatically. when well maintained, there is
therefore no operation plan needed for this system,
2, Maintenance
,
Periodic maintenance is essential to the proper functioning of the basin, If well-
maintained it functions as an effective means of flood control and stomlwater
polluntion treatment system; however, if periodic maintenance is neglected the
basin may not function properly and may cause problems, Growth of unwanted,
vegetation, the accumulation of sediment and debris left by stonnwater runoff and
soil erosion and failure of the stomlwater are the main issues to addressed by
maintenance of the basin, Periodic inspection of the basin will help to insure these
problems do not develop,
The basin should be inspected semiannually before the beginning and end of the
wet season and after each rain event. The inspection ofthe basin should include
checking for the following problem issues:
. Standing water remaining 48 hours after a rain cvent;
. Soil erosion occurring in or around basin, especially along the basin's
slopes and pipe outlct at its energy-dissipating riprap,
. Animal burrows, from gophers and ground squirrels. in and around the
basin, which could negatively affect the 'structural stability of basins slopes
and cause soil erosion,
. Acculllulated trash, debris and sedilllcnt in and around the basin,
. Atthe beginning and cnd of wet season trim vegetation as well as inspect
monthly to ,avert woody vegetation foundation, along with aesthetic and
vector reasons,
Shcet I of 2
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. Basin inspected every year for accumulated sediment volume,
Accumulated sediment must be removed and basin regraded about every
10 years or when the accul11ulated sediment volume exceeds 10 percent of
the basin volume,
Material Disposal
Owners are responsible for complying with all federal, state, and local regulations
when disposing of material collected from the stonn water quality unit. Water and
sediment from cleanout procedures should not be dUl11ped.into sanitary sewer.
Hazardous Wastes
Suspected Hazardous wastes will be analyzed to determine disposal options,
Hazardous materials generated on site will be handled and disposed of according to
local, state, and federal regulations, A solid or liquid waste is considered a hazardous
waste is considered a hazardous waste if it exceeds the criteria listed in the CaJifomia
Code of Federal Regulations, Title 22, Article II (State of California, J 985),
Sheet 2 of 2
EXHIBIT.'C'
CITY OF POWAY TM 02-02
APN 277-080-09
2682
A
EASEMENT TO THE CITY OF POWAY
~ OVER, UNDER AND ACROSS LOT B
OF CITY OF POWAY TM 02-02 AND
MAP NO,________JOR ACCESS,
INSPECTION AND MAINTENANCE
ACTIVITIES, REFER TO PARAGRAPH 4
OF THIS STORM WATER MANAGEMENT
FACILITIES MAINTENANCE AGREEMENT,
7
OPEN
SPACE
SUNSET POINT
ROAD
SUNSET RIDGE ~
COURT
4
CONTINUATION OF
VALLEYVIEW ROAD
I
LOTS
CITY OF POWAY--
TM 02,02
MAP NO,
3
SUNSET POINT
ROAD
\
6
3
DETENTION
BASIN 2:
OPEN
SPACE
G
DEER VALLEY ESTATES/
OLD COACH ROAD
/
{~
SCALE: 1 "=500'
ENGR\ W00320\MAI NTENANCE\BMPEXHIBITC, DWG
PLOTTED: 10/09/08