Storm Water Management Facilities Maintenance Agreement 2012-0751830RECORDING REQUESTED BY:
CITY OF POWAY
AND WHEN RECORDED MAIL TO:
CITY CLERK
CITY OF POWAY
P O BOX 789
POWAY, CA 92074
D 0 C # 2012-0751830
1111111111111111111 IN
i l p NOV 30, 2012 2:28 PM
229'?
NG OFFICIAL RECORDS
I SAN DIEGO COUNTY RECORDER'S OFFICE
Ernest J. Dronenburg, Jr., COUNTY RECORDER
FEES: 0.00
PAGES: 12
VIII VIII VIII VIII VIII VIII VIII VIII VIII VIII VIII VIII VIII VIII VIII IIII IIII
(THIS SPACE FOR RECORDER'S USE)
STORM WATER MANAGEMENT FACILITIES
MAINTENANCE AGREEMENT
(G1565-07)
The undersigned grantors) declares:
Documentary Transfer Tax is $ -0- pursuant to Revenue & Tax Code 11922 (conveyance to a Government Agency)
This AGREEMENT for the maintenance and repair of certain Storm Water Management
Facilities is entered into between BBA Partners LLC, a Delaware Limited Liability Company,
(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 as Lot "B" of Map No. 15725, filed in the office of the
County Recorder of San Diego County (hereinafter referred to as the "PROPERTY "), and has
proposed that the PROPERTY be developed as part of a residential subdivision in accordance
with applications for Tentative Tract Map No. TTM02 -02 and Grading Permit No. G1565 -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 ":
Three detention basins as shown on the approved grading plans.
Eight high -rate media filters as shown on approved grading plans.
The precise location(s) and extent of the BMPs are indicated in the approved Water Quality
Technical Report and subsequent addendums, and on the approved grading plans on file with
CITY's Development Services Department as G1565 -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 Operation and Maintenance Plan (hereinafter "O &M PLAN "), which is attached hereto and
incorporated herein as Exhibit "A ".
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WHEREAS, 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:
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 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.
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
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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.
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 only CITY's direct costs incurred
in performing the MAINTENANCE ACTIVITIES. 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.
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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.
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: BBA Partners LLC, A Delaware Limited Liability Company
By: Date: NOV v✓
Print Name: �/ r
S. Eric Ottesen
Its: [Manager /Managing Member]
CITY OF POWAY:
APPROVED AS TO FORM:
Office of the City Attorney
Morg L. oley, City A torney
Attachments: EXHIBIT A
EXHIBIT B
M:\engsew\CiappVAgreements\Heights\SWFMA-Final.doex
Date: // g Z
APPROVED AS TO CONTENT:
Engineering Division
teven R. Crosby, P.E.
City Engineer
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ACKNOWLEDGMENT
State of California
County of San Diego} ss.
On November 6, 2012 before me, Jennifer Sattley, Notary Public, personally appeared
S. Eric Ottesen, 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 /shetthey executed the same in his /her/their authorized capacity(ies), and
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 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 and official seal.
Sign re
JENNIFER SATrLEY
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COMM. #t9p8742 pu
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who proved to me on the basis of satisfactory evidence to
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within instrument and acknowledged to me that
hei executed the same in his /* /tIh6ir authorized
capac4(io5), and that by his/h*/thXir signatureA on the
instrument the person(s), or the entity upon behalf of
which the person()I) 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 and official seal.
Signature /r r-y
Signature of Rotary 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
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Title or Type of Documt
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Document Date:
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Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
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Signer's Name:
L Individual
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C Corporate Officer — Title(s):
❑ Corporate Officer — Title(s):
I Partner—,' Limited I General
❑ Partner — ❑ Limited 11 General
Ei Attorney in Fact -
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L Trustee Top of thumb here
0 Trustee Top of thumb here
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❑ Guardian or Conservator
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❑ Other:
Signer Is Representing:
Signer Is Representing:
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CERTIFICATE OF ACCEPTANCE
STORM WATER MANAGEMENT FACILITIES
MAINTENANCE AGREEMENT (G1565 -07)
2230¢
This is to certify that the interest in real property identified as APN 277 - 230 -12 -00 in the City of
Poway conveyed by the Storm Water Management Facilities Maintenance Agreement, Item 4,
dated:// 114/ �/� from BBA Partners LLC, A Delaware Limited Liability Company to the City
of Poway, 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.
Dated: / 1
Seal:
CITY OF POWAY
By:
da A. Troyan, MMC
City lerk
5
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EX BB1T'A'
Operation and Maintenance Manual
1. Detention Basin
Three detention basins exist on the subject property and can be located on Exhibit C and in
more detail on City of Poway Grading Plans G1565-07.
1. eration
The detention basin has no mechanical or moving parts to be operated. The basin is
designed to capture and detain storm water runoff functioning both as flood control
and a pollutant treatment system by to allow pollutants to settle of this detained
storm water and then slowly drain away the captured runoff automatically by use of
a relatively 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 stormwater
pollution 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 stormwater runoff and
soil erosion and failure of the stormwater 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 of the basin should include
checking for the following problem issues:
• Standing water remaining 48 hours after a rain event;
• Soil erosion occuning in or around basin, especially along the basin's
slopes and pipe outlet 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.
• Accumulated trash, debris and sediment in and around the basin.
• At the beginning and end of wet season trim vegetation as well as inspect
monthly to avert woody vegetation foundation, along with aesthetic and
vector reasons.
• Basin inspected every year for accumulated sediment volume.
Accumulated sediment must be removed and basin re- graded about every
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10 years or when the accumulated 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 storm water quality unit. Water and
sediment from cleanout procedures should not be dumped into sanitary sewer.
Hazardous Wastes
Suspected Hazardous wastes will be analyzed to detennine 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 California
Code of Federal Regulations, Title 22, Article 11 (State of California, 1985).
11. ClearWater Solutions Filter Units
Eight ClearWater Solution Filters and catch basins exist on the subject property and can be
located on Exhibit C and in more detail on City of Poway Grading Plans G1565 -07. The
operation and maintenance needs for Clearwater Solutions filter unit is as follows:
• The unit should be periodically (two times per year) inspected to determine the
amount of accumulated pollutants and to ensure that the cleanout frequency is
adequate to handle the predicted pollutant load being processed by the ClearWater
filter unit.
• During inspections the top grate of the catch basin, the deflector adaptor for open -
grate systems and the top panel of the ClearWater unit shall be removed.
Every 60 days during the rainfall season and at the end of the rainfall season, the unit
shall be inspected for damages and the collected trash, debris, sediment and other
material shall be removed. The floatable should be removed and the settling areas
cleaned when the primary settling chamber is 40% to 50% full. If floatables
accumulate more rapidly than the settleable solids, the floatables could be removed
swing a vactor truck. The Trash baskets can also be removed and captured materials
can be disposed of properly.
Step by step maintenance:
1. Remove cover with attached Hydrocarbon Sock.
a. Check for full absorption or not. Replace if hard when squeezed.
b. Reuse or replace.
2. Remove Trash Collector Brackets and Nets.
a. Remove trash and debris from nets.
b. Check condition ofcollection nets and clips.
2 _
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3. Vacuum the sediment areas of unit thoroughly.
4. Remove complete Filter Canister.
a. Replace primary Filter Matt (Blue).
b. Remove media filter bag, dispose and replace.
5. Replace Trash Baskets
6. Reinstall Cover
Material Disposal
Owners are responsible for complying with all federal, state, and local regulations
when disposing of material collected from the storm water quality unit and
underground detention pipe system. Water and sediment from cleanout procedures
should not be dumped 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 if it exceeds the criteria listed in the California Code of Federal Regulations,
Title 22, Article 1 I (State of Califomia, 1985).
Owners are responsible for all inspection. operation, and maintenance activities. Records of
activities shall be kept for a minimum of 5 years and shall be made available upon request
from the City.
3-
OPEN
OPEN v
SUNSET RIDGE
COURT
LOT B
CITY OF POWAY— _ J
TM 02-02
MAP NO. 15725
I
SUNSET POINT
I
ROAD
OE1EN ON
-SAM 3
ENGR \WO0320 \MAINTENANCE \BMPEXHIBITC. DWG
PLOTTED: 12/14/11
DETENTION BASINS
SUNSET POINT
ROAD 7
1 4
5
SCALE: 1 " =500'
EXHIBIT'B'
F�
APN 277 - 230 -12
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LEGEND:
- -
* REPRESENTS DETENTION BASIN
9
EASEMENT TO THE CITY OF POWAY
■ REPRESENTS CATCH BASIN WITH
A
OVER, UNDER AND ACROSS LOT B
CLEARWATER SOLUTION FILTER
OEtainDN
5
® OF CITY OF POWAY TM 02 -02 AND
INSERT
� 1
MAP NO. 15725 FOR ACCESS,
--
EN
INSPECTION AND MAINTENANCE
ACTIVITIES. REFER TO PARAGRAPH 4
OF THIS STORM WATER MANAGEMENT
FACILITIES MAINTENANCE AGREEMENT.
V 7 4
OPEN
OPEN v
SUNSET RIDGE
COURT
LOT B
CITY OF POWAY— _ J
TM 02-02
MAP NO. 15725
I
SUNSET POINT
I
ROAD
OE1EN ON
-SAM 3
ENGR \WO0320 \MAINTENANCE \BMPEXHIBITC. DWG
PLOTTED: 12/14/11
DETENTION BASINS
SUNSET POINT
ROAD 7
1 4
5
SCALE: 1 " =500'