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Storm Water Management Facilities Maintenance Agreement 2011-0219998rr � RECORDING REQUESTED BY: CITY OF POWAY AND WHEN RECORDED MAIL TO: CITY CLERK CITY OF POWAY P O BOX 789 POWAY, CA 92074 DOC# 2011 -0219998 APR 27, 2011 3:59 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE Ernest J. Dronenburg, Jr., COUNTY RECORDER FEES: 0.00 WAYS: 2 OC: NA PAGES: 13 (THIS SPACE FOR RECORDE USE) APN: 317- 225 -13 STORM WATER MANAGEMENT FACILITIES MAINTENANCE AGREEMENT (G1630 -09) 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 DEI, LLC (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 temporary parking lot in accordance with the application for Grading Permit No. G1630 -09, which is 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 ": Combination sand filters with vegetated swales surrounding the paved area, as shown on the approved plans. The precise location(s) and extent of the BMPs are indicated on the Standard Urban Storm Water Mitigation Plan and Addendum dated December 31, 2009, on file with CITY's Development Services Department. 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 "B ". 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 of this Agreement to assure that the BMPs are maintained, by creating obligations that are enforceable li- o0a 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: 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 2 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 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 all of the PROPERTY ", 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 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 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. 3 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" as 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 Agreement, and shall undertake 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 stormwater runoff. In the event of any conflict between the terms of this Agreement 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 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 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. 9. 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. a 10. 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. 11. 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: DEI, LLC By: Jim Hilton Its: 14AOA'� 1� CITY OF POWAY: Robert J. P Director of is APPROVED AS TO FORM: Office of the City Attorney T4�� { Lisa A. F , City Attorney Attachments: EXHIBIT A EXHIBIT B Date: l — /y' 0 101 Date: 3/ APPROVED AS TO CONTENT: Engineering Division , tev n Crosby, P.E. Acting City Engineer M:\engserv\Clapp\Agreements \NPSA Storm Water Facilities Agmt.docx California All - Purpose Acknowledgement State of California < County of j 0 S On before me, C 1 ,VUt- - eOfficer ?` personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) > is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her/their authorized capacity(ies), & that by his /her /their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed they instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true & correct. s WITNESS my hand & official seal H. MCCRONE >` Signature of Notary Public commission * 1928088 Notary Public - CsfifofMs �1 C �j t� m :• m K �faf 4, 2015 Optional Information. Description of Attached Document. Title or Type of Document s< `.S S Document Date: Number of Pages: I.� Other information: }) 1� 1. �ti s: r �iv�v�.v'� vw v �✓v�iw` v�:v�i` � iv�:��✓��i��v �v��� ; �' n ' i�v�✓ �iv�v�v� ���`!` ✓v .% v�;�w��v. www.santac=otarv.com/ #831 - 227 -6122 CALIF ALL ACKN ' � !. > :r � r ✓' � , . : _ ! . ���� ,. ! \. _ : N'.jO,:4j�i•j ! > � !? r� , � !' ✓ , -� ��C,.� , r i � r� r:�..: r i r � , r`.�!._C �� State of California County of f � 11 2 � 1 1 � 11 1 ,, � On Z oe/ before me, iyyL G/S �' / V Y c3L t e-- ^ , — Gate Here Ingert Name and We of the Officer personally appeared PHYLLIS SHINN Commission # 1778898 s► Notary Public - California San Diego County 1V CornM Wes Nov9 2011 who proved to me on the basis of satisfactory evidence to be the person( whose name( is/.-* subscribed to the within instrument and acknowledged to me that he/s'Wtl* executed the same in his/tX_r/ttWr authorized capacity(io), and that by his/t*r/t0kr signature( on the instrument the person((l, 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 han nd official sea Signature Place Notary Seal Above Signatur 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 Document Title or Type of Document: Y V1 ffl ✓ Document Date: _ j 2 0 / A / Number of Pages: Signer(s) Other Than Named Above: v / / Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual ❑ Individual • Corporate Officer — Title(s): ❑ Corporate Officer — Title(s): • Partner — ❑ Limited ❑ General ❑ Partner — ❑ Limited ❑ General - • Attorney in Fact • ❑ Attorney in Fact ❑ Trustee Top of thumb here Top of thumb here El Trustee ❑ Guardian or Conservator ❑ Guardian or Conservator ❑ Other: ❑ Other: Signer Is Representing: Signer Is Representing: 02007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313 -2402 • www.NationalNotaryorg Item #5907 Reorder: Call Toll -Free 1- 800- 876.6827 CERTIFICATE OF ACCEPTANCE This is to certify that the interest in real property conveyed by DEI, LLC, 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: CITY OF POWAY Seal: da A. Troyan, MMC City Clerk C: LEGAL DESCRIPTION LOT 5 OF MAP NO. 11742, RECORDED MARCH 9, 1987 AS FILE NO. 87-122499 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, STATE OF CALIFORNIA. Robert D. Dea O 1 * E 1,913,'1,1 WIN Exhibit "A" Operations and Maintenance Agreement For NPS Auctions, 12400 Stowe Drive, Poway, CA (Reference: City of Poway Grading Plan G 1630 -09) OWNER / RESPONSIBLE PARTY: NPS Auctions Devon DeForest 12400 Stowe Drive Poway, CA 92064 (858)413 -1116 (24 -hour contact, not an answering service) Note: Owner is not relinquished of maintenance responsibilities by delegation of tasks. II. SUMMARY OF PROJECT SITE AND PROJECT The proposed development is a temporary asphalt parking lot. The parking lot is placed on Lot 5 of Map 11742. At present Lot 5 is vacant but adjacent to the NPS Auctions Facility at 12400 Stowe Drive. The temporary parking lot serves as a show lot for various forms of recreation equipment during weekend auctions. The parking lot measures roughly 240 ft by 150 ft. VICINITY MAP 7MD5 IVP.it80. a-7 III. SUMMARY OF SUSMP An Standard Urban Stormwater Mitigation Plan (SUSMP) dated March 20,2009 with an addendum, has been prepared for this project and is on file with the City of Poway. The BMP's implemented for this project as identified in the SUSMP are: I. Site Design BMPS The following site design BMPS are incorporated into the design of the project and the locations of each, shown on the SWMP site map. The SWMP contains printouts of a number of potentially useful BMPs that may be used on this project. These printouts explain in detail the description, purpose and expected benefits of each BMP. • Maintain pre - development runoff characteristics SD -10 • Increase rainfall interception SD -10 Exhibit "B" • Minimize directly connected impervious areas (DCIAs) SDA 1 • Slope and channel protection SD -10 ii. Source Control BMP The following Source Control BMP's will be utilized on this project • Storm drain stenciling and signage SD -13 • Trash storage area designed to reduce rainfall run -off SD -34 • Efficient irrigation system SD -12 iii. Treatment Control BMP The primary treatment control BMP selected for this project are sand filters which are to be placed in grass lined swales. The sand filters are to be built and maintained in accordance with C.A.S.Q.A. Standard TC-40. The sand filters are the main BMP with the grass swales acting as a secondary BMP. The sand filters are to be drained by perforated PVC drain pipes which drain the filters to a nearby catch basin and storm drain. The primary pollutant of concern for the site and the watershed is sedimentation. Sand filters have a high removal effectiveness for this pollutant. IV: EMPLOYEE TRAINING PROGRAM The engineer of work for the project will discuss the operating nature of all site BMP's and aspects of maintenance with the owner. It is the responsibility of the owner to perpetuate the training of additional personnel who will be performing inspections or maintenance of the project Training sessions shall occur on an annual basis at a minimum for each site maintenance representative. All new employees responsible for BMP inspection and /or maintenance are to be trained within a month of being hired. The training at a minimum is to provide an overview of the requirement for inspection and effective operation and maintenance of all BMP's implemented on site. Training sessions are also to be conducted on proper record keeping methods. It is recommended all training is held onsite. Training is to include written, verbal and real life examples of inspection and maintenance methods. External training conducted by other agencies is acceptable. Employees are to be given instructions on the following at a minimum: • Inspection of Storm Drain Stenciling and Signage. • Inspection, preventative measures and maintenance of trash storage areas. • Inspection and maintenance of landscaping /grass swales. • Inspection and maintenance of irrigation systems, including the location of shut off valves. • Inspection and maintenance of sand filters. The delegation of inspection and maintenance tasks is at the discretion of the owner, however delegating tasks to others does not relieve the owner of any responsibility for maintenance of BMP facilities. A training log is to be completed for each training session. All records of training are to be kept for a minimum of 5 years. V. INSPECTION PROGRAM: The owner will be responsible for conducting inspection of BMP's to insure proper operation and maintenance. If desired the owner may train an employee or contract out for this service. Copies of all contract services shall be maintained for a minimum of 5 years. The design of this project took into consideration various site design BMP's as described above. No changes are to be made to the design of the project that could potentially compromise the effectiveness of any site design BMP. Source Control and Treatment Control BMP's shall be inspected per the following guidelines: BMP Frequency of Inspection Indicators of Maintenance Storm Drain Stenciling Annually Faded Lettering or graffiti and Si na e Annually on an Faded Lettering Storm Drain Inlet Weekly & after each storm event Trash or debris obstructing as needed or graffiti rate or in well chamber Landscaping Weekly Dead plants / bare areas / damage due to insects or Clean trash Weekly animals / soil erosion and /or Minor maintenance along standing water / trash or debris Efficient irrigation system Weekly Over watering or irrigation performed as necessary, any water runoff / Broken components including maintenance in chamber area sensors, damaged heads or valves / over-sprayin Parking Areas Weekly Trash or debris / vehicular licensed professional lubricants (ie. oil, antifreeze, transmission fluid, etc. Sand Filter (TC -40) Annually and following significant Standing water grass swale storm events clogs with sediment Vegetated Swale Weekly Trash, Weeds, Un- above Sand Filter mowed/Dead/Dying mowed/Dead/Dying Grass All annual inspections shall be performed prior to the rainy season (October 1 of each year). An inspection log shall be prepared for each inspection. This form is to be copied and modified as needed to address additional concerns. The records of inspections shall be maintained for 5 years. VI. MAINTENANCE PROGRAM: The owner will be responsible for performing maintenance of BMP's to insure proper operation and maintenance. The owner may contract for this service if desired. Copies of all contract services shall be maintained for a minimum of 5 years. Maintenance of the sand /media filter will require the work of a contracted professional. Source Control and Treatment Control BMP's shall be maintained per the following guidelines BMP Maintenance Activities Frequency of Maintenance Indicators of Non routine Maintenance Special Requirements for Maintenance Storm Drain Reprint Annually on an Faded Lettering This work should be Stenciling and stenciling as needed or graffiti performed by contract Si na a basis Storm Drain Inlet Clean trash Weekly Backup of flow Minor maintenance along debris or other front of inlet can be obstructions performed as necessary, any maintenance in chamber area should be performed by a licensed professional r � � Landscape Mowing / Weekly Overgrown It is recommended that a Maintenance SC-41 trimming (biweekly plants and /or landscape professional be / Fact Sheet Replace dead maintenance grass / dead contracted for maintenance of (appendix B) plants and /or acceptable plants and /or landscape areas / landscape plant bare during dormant bare areas waste is to be disposed of in areas / fill in / period / cold an appropriate recycle or repair any weather) trash receptacle. The use of eroded areas, a leaf blower is not or animal recommended burrows. Efficient irrigation Repair broken Following Over watering It is recommended that a system SC-41 components weekly or irrigation Landscape professional be inspection on water runoff contracted for maintenance of an as- needed irrigation system basis Parking Areas Sweep parking Monthly N/A The use of a street sweeper area / dry and or is appropriate or sweeping treat any vehicle may be done by hand. lubricant spills or Dispose of any trash or debris leaks in an appropriate trash receptacle Sand Filter (TC -40) Remove grass, Annually Standing water This work should be stir or replace for over 72 performed by a contractor sand hours Vegetated Swale Mowing, Mowing, Visible Trash, Work should be performed as (above Sand Filter) Weeding, Weeding and Weeds, part of regular site Fertilizing, Trash Watering- Standing Water landscaping maintenance. Control weekly, for over 72 Fertilize Bi- Hours month)