Storm Water Management Facilities Maintenance Agreement 2010-0556266D O C # 201 0 - 0556266
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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
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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"
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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.
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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
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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
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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
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❑ Corporate Officer — Title(s):
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13061
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Date \ Here Inser Name antl Ttle of the Otlmar '
personally appeared
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Commission # 1778898
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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
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Document Date: / 0, ;2 19 f Number of Pages:
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Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
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Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
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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.
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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
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