Loading...
Storm Water Management Facilities Maintenance Agreement 2010-0556266D O C # 201 0 - 0556266 IIIII I I 1111111111111111111111111 HE 11111111111 III RECORDING REQUESTED BY: OCT 15, 2010 3:59 PM .CITY OF POWAY OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE DAVID L BUTLER, COUNTY RECORDER AND WHEN RECORDED MAIL TO FEES: 0 00 CITY CLERK PAGES: 10 CI TY OF P P O BOX 789 Y �Q� IIIIIIIIIIII�IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII POWAY, CA 92074 / t r n I W (THIS SPACE FOR RECORDER'S USE) APN: 323- 520 -06 STORM WATER MANAGEMENT FACILITIES 13056 MAINTENANCE AGREEMENT (DR05 -11) 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 Gene Gasselle (hereinafter referred to 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 "), and has proposed that the PROPERTY be developed as a single - family residential structure in accordance with applications for Development Review No. 05 -11 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 ": Approximately 100' of Vegetated Swale south of the entry driveway, beginning approximately 250' west of the Intersection of Sky Mountain Trail and Welton Lane. The precise location(s) and extent of the BMPs are indicated in the Water Quality Technical Report, approved April 03, 2009 on file with CITY's Development Services Department, an excerpt of which is included as Exhibit 'B' on this report. 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 Exhibit "C" fo -10W 13057 WHEREAS, OWNER's'representations that the BMPs 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 SUSMP'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'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. Notices. 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, provide clear written. notice of the above maintenance obligations associated .with that BMP to the transferee. OWNER further agrees to provide evidence to CITY Engineer 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 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. 13058 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 that portion of the driveway required to access the Vegetated Swale and the area encompassing the swale as demonstrated on Exhibit B, 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 CITY related to the implementation of this Agreement shall be addressed to. City Engineer City of Poway 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. 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 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. 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 persons owning any interest in the PROPERTY (including the interest of CITY or its 3 13059 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. 8 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. 9. Amendment and Release. The terms of this Agreement may be modified only by a written amendment approved and signed by the City Council or the CITY Engineer 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. 10. 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. 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: Date: Gene Gass- le CITY OF POWAY: Date: obert J. Wanii Director of Development rvices APPROVED AS TO FORM: Office 'of the City Attorney Lisa A. Foster, City Attorney APPROVED AS TO CONTENT: Engineering Division `Fly Steven Crosby, P.E. Acting City Engineer Attachments: EXHIBIT A EXHIBIT B EXHIBIT C MAengsery \000 doc templates \Storm Water Facilities Agmt doc ?3060 RPLWAR �C.�>,.v,.;T<. »i_ zr>_. �. L. c�L. au?» ,tis_40 ,...: <!au ». State of California County of _ /� J /� C) O n 32 3 DyD /before me, fF�/f z! / o 7 C— Date _ _ Here Insert Name and Title of the Officer personally appeared t A/G P HYLLI S SHINN Commission # .': Notary Public • California San Diego County Comm. Expires Nov 9,2011 Lt who proved to me on the basis of satisfactory evidence to be the person(� whose name(k is /a);6-subscribed to the within instrument and acknowledged to me that he/s`t*ithey executed the same in his /fir /thy authorized capacity(0W, and that by his /h*JthWsignature(Kon the instrument the person(„ 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 my hand apff official seal. Signature Place Notary Seal Above Signature of Notary Public 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 D Docume � nt � TitleorTypeofDocument- 5Q�I /� (/(//� Document Date — 22Z Z / 2 / 0 Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signers) Signer's Name: ❑ Individual ❑ Corporate Officer —Title(s): _ ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHTTHUMBPRINT -OF SIGNER Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited O General ❑ Attorney In Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHTTHUMBPRINT li `OF.SIGNER,.. Top of thumb here 02007 National Notary Association -9350 De Soto Ave, PO Box 2402 • Chatsworth, CA 91313 -2402• wrrvu NationalNotaryorg Item #5907 Reorder Call Toll Free 1- 800 -876 -6827 13061 State of California 1 County of –!A � / L �� D J} On L< r�3L�27, 2010 before me, T/ yLC /1 �!� //t/�a/ /��TAz2y}% t/3L( �-- Date \ Here Inser Name antl Ttle of the Otlmar ' personally appeared PHYLLIS SHINN �(L Commission # 1778898 .'o Notary Public - California San Diego County Ccmm.=Nov9,2011 who proved to me on the basis of satisfactory evidence to be the person(, whose namek is /a)k subscribed to the within instrument and acknowledged to me that he/s}i(e/t* executed the same in his /ter /th)Sir authorized capacity(i�, and that by his /Ij*r /tt}iW signature(4 on the instrument the person), 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 my hand . 0d d official seal. Signature Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below 1s 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 TitleorTypeof Document ;JfVAlL , T <//'! AI iI?E/// tN/ 7 4 C/ L/ 7/ ES /y1YflelEN//IiCt7 12;1fCBC ./T /G/ Document Date: / 0, ;2 19 f Number of Pages: Signer(s) Other Than Named Above: t / 9 SSG`G L E Capacity(ies) Claimed by Signers) Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHITTHUMBPRINT OF SIGNER Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHTTHUMBPRINT OF,SIGNER•- 02007 National Notary Association -9350 De Sato Ave, PO. Box 2402- Chatsworth, CA 91313- 2402 - wx¢a NationalNotary org Item#5907 Reorder Call Toll Free 1- 800 - 876 -6827 13062 EXHIBIT'A' LEGAL DESCRIPTION LOT 6 OF TRACT MAP 15407 ON FILE AS DOCUMENT NUMBER 2006 - 0567631, RECORDED AUGUST 09, 2006 IN THE COUNTY RECORDER'S OFFICE IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA. 13063 MT t 407N Al �A T. 13064 Nvater Quait Technical Report 14099 Sky mountain Trail XN,cli is that they function as vegetated swales and are part of a treatment train even though they are not under the same design criteria or maintenance requirements. Section 6. Maintenance Requirements The effectiveness of the BMPs relics on the maintenance for the projec(. - fhis section describes the care and upkeep of the structural BMPs planned for the project site. All Main(enance is the responsibility of the Homc Owner now and onto evey subsequent honicowner(s). 6.1. BHP Inspection cad A4c7h7te77a17cc The Project's storm water conveyance s } consists of a natural sheet (low conditions. ditches, and existing 12" by 12" small storm drain inlets and one 12" by 12" driveway inlet near the project's entry designed by Brisendine Land Services, Inc to intercept the water to be treated in the proposed bio- swale. The inlet will be approved by the City of Poway per the 1�u 4li 1.0 Gt T R 4: h .'h, f "C ", Inspection is the key to effective maintenance and easily performed. The Bio- sNvale requires a minimum of quarterly inspections of the accumulated sediment. Pollutant deposition and transport may vary from year to year and quarterly inspections will help insure that systems are cleaned out at the appropriate time. It is very useful to keep a record of each inspection. The Bio -swale needs to be cleaned when inspection reveals that they are nearly fill; This determination can be made by a visual inspection and estimation. Over time, a pile tends to accumulate in the filter containing sediment and associated metals, nutrients, hydrocarbons and other pollutants. Accumulation of these pollutants can easily be accessed through access manholes over each unit. Maintenance is typically performed as follows. 1) Quarterly inspections conducted for the first two years after the installation of the system. During construction, when there is a potential for heavy sediment accumulation, inspections will be conducted monthly. 0 2) The Swale will be cleaned out on an annual basis, unless inspections require additional cleaning. 62. Cost Estimate This cost estimate includes all activities, materials and other costs associated with I implementation of this WQTR of all BMPs proposed, including treatment BMPs, storm drain stencils, landscaping and irrigation, etc. Por activities that are completed as part of general properly management, a proportion of the costs, dedicated to the operation and maintenance of the BMPs shall be estimated in order to prepare the O &M cost estimate and these costs are summarized here. Page 9 JN 07 -21 (April 2009) 13065 CERTIFICATE OF ACCEPTANCE This is to certify that the interest in real property conveyed by the deed or grant dated: ,5��bn- 30, 2010 from Gene Gasselle Grantor, to the City of Poway, Grantee, 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. 34 adopted on January 20, 1981 and the grantee consents to recordation thereof by its duly authorized officer. Dated: a Seal: CITY OF POWAY Z � �B I n A. Troyan, MMC, y Clerk M: \engsery \Clay O \Gaselle \Storfn Water Facilities Agmt docx 5