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
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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 >`
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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)