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Storm Water Management Facilities Maintenance Agreement 2014-0155118RECORDING REQUESTED BY: CITY OF POWAY AND WHEN RECORDED MAIL TO: D O C# 2014-0155118 1 III IIII III III 1 IIIII III IIIII IIIII II IIIII IIIII III IIIII II III APR 18, 2014 12:23 PM OFFICIAL RECORDS SAN DIFGO COUNTY RECORDER'S OFFICE Ernest J. Dronenburg, Jr., COUNTY RECORDER FEES: 0.00 PAGES: 13 (THIS SPACE FOR RECORDER's USE) STORM WATER MANAGEMENT. FACILITIES MAINTENANCE AGREEMENT Dye Sport Court 18776 Heritage Drive (G13 -0002) 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 the Property Owner, Dye Joint Revocable Trust (hereinafter referred to collectively 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 22 of City of Poway Tract No. 98- 02'Heritage Ranch Estates, in the City of Poway, County of.San Diego, State of California, according to Map thereof No. 14388, filed in the office of the County Recorder of San Diego County, May 8, 2002 (hereinafter referred to as the "PROPERTY "), for which additional development 'is proposed, in accordance with applications for Minor Development Review Application 12 -039, and Grading Permit No. G13- 0002, 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 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 ": A bioretention basin located northeast of the existing residence and pervious pavers used in the Palapa area; all as shown on the approved grading plans. The precise location(s) and extent of the BMPs are indicated in the approved Water Quality Technical Report for .the ,Dye Residence, and on the approved grading plan on file with CITY's Development Services Department as G13 -0002. The manner and standards by which the BMPs ,y -Oa I CITY CLERK CITY OF POWAY P O BOX 789 POWAY, CA 92074 nr- D O C# 2014-0155118 1 III IIII III III 1 IIIII III IIIII IIIII II IIIII IIIII III IIIII II III APR 18, 2014 12:23 PM OFFICIAL RECORDS SAN DIFGO COUNTY RECORDER'S OFFICE Ernest J. Dronenburg, Jr., COUNTY RECORDER FEES: 0.00 PAGES: 13 (THIS SPACE FOR RECORDER's USE) STORM WATER MANAGEMENT. FACILITIES MAINTENANCE AGREEMENT Dye Sport Court 18776 Heritage Drive (G13 -0002) 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 the Property Owner, Dye Joint Revocable Trust (hereinafter referred to collectively 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 22 of City of Poway Tract No. 98- 02'Heritage Ranch Estates, in the City of Poway, County of.San Diego, State of California, according to Map thereof No. 14388, filed in the office of the County Recorder of San Diego County, May 8, 2002 (hereinafter referred to as the "PROPERTY "), for which additional development 'is proposed, in accordance with applications for Minor Development Review Application 12 -039, and Grading Permit No. G13- 0002, 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 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 ": A bioretention basin located northeast of the existing residence and pervious pavers used in the Palapa area; all as shown on the approved grading plans. The precise location(s) and extent of the BMPs are indicated in the approved Water Quality Technical Report for .the ,Dye Residence, and on the approved grading plan on file with CITY's Development Services Department as G13 -0002. The manner and standards by which the BMPs ,y -Oa I 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 "Ni. 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 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 theievent of failure. Replacement shall be with an identical type, size and model of BMP, except that: (a) The City 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 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, or any lot or portion of the PROPERTY which is served by the above BMPs, and also prior to transferring ownership of any such BMP, provide clear written notice of the above described maintenance obligations to the transferee. 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 SWMFMA Dye Sport Court G13 -0002 Page 2 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. 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. 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. 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 the City related to the implementation of this Agreement shall be addressed to: City Engineer City of Poway 13325 Civic Center Drive Poway, CA 92064 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. Allocation of Costs. Following the sale or transfer of any of the individual residential lots by OWNER, the cost of the MAINTENANCE ACTIVITIES required by this Agreement shall SWMFMA Dye Sport Court G13 -0002 Page 3 be divided equally by all lot owners, and paid,by,each lot owner or his or her heirs, assigns and successors in interest. This requirement shall be binding on_ all lot owners in the subdivision, and each shall be responsible for his or her equal share of the cost associated with the maintenance. 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 Director of Development Services 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. OWNER hereby waives any right to remove any such action from San Diego County as is otherwise permitted by California Code of Civil Procedure Section 394. 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. SWMFMA Dye Sport Court G13 -0002 Page 4 IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth hereinafter. OWNER: Dye Joint Revocable Trust, dated March 4, 2007 By,' I Date: .� Jermaine T. , Trustee By: ' Tricia L. Dye, Trust CITY OF POWAY: Iddi Date: / "I bert J. Ma is Director of Development ervices Date: Notarize Above Sig I natures APPROVED AS TO FORM: APPROVED AS TO CONTENT: Office of the City Attorney Engineering Division r i Mor n L. 'oley, City A orney even Crosby, P.E. City Engineer Attachment 1. Certificate of Acceptance 2. Exhibit "A" M:\engsem \Lend Development Projects\2013\G13 -0002 Dye\SWFMA.docx SWMFMA Dye Sport Court G13 -0002 i Page 5 STATE OF CALIFORNIA COUNTY OF SAN DIEGO On (�y� �3 .2c, 13 before me, <r ( t appeared r e who prove be the person(s) whose name(s) is /are subscribed to that helshe %they executed the same in his/her /their a signaturefs) on the instrument the person(s); or the c executed the instrument. I certify under PENALTY OF PERJURY under foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature Public. STATE OF CALIFORNIA COUNTY OF SAN DIEGO On M (w 21�, before me, Uer4� appeared I L - i e, who prove be the perso whose name is/ subscribed to i that heisfie cy executed the same in is/her /theft signatures) -on the instrument the persoi}(s), or the e executed the instrument. I certify under PENALTY OF PERJURY under foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature otary Public A 01 b w t- c n, Notary Public, personally to me on the basis of satisfactory evidence to ie within instrument and acknowledged to me horized capacity(ies) and that by his/herhheir" tity upon behalf of which the person(s)acted, laws of the State of California that the CHEAPYLINN MOULTON 60mn0e0, a 1911487 no" Public Canton"" Ban 01apn !; ounty it C i:,s N6r1 °2014 f�l ou 1 1an., Notary Public, personally me on the basis of satisfactory evidence to within instrument and acknowledged to me irized capacity(iesyand that.by,K/her/tffi i• y upon behalf of which the person(s)lacted, laws of the State of California that the CHERYL ANN,MOULTON Comngeelon s 1811487 Notary Public • Ca "W" San Diego Coumy Comm. E!1148 Nov 1 2014 r CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT State of California /) County of On L zo, before me, 4yz Z15 pals / Here Insert game aml TNe of the Officer personally appeared �R08 e-�Z T �/• / S who proved to me on the basis of satisfactory evidence to be the persona whose name(A is/aN-subscribed to the within (instrument and acknowledged to me that he /sXeltft executed the same in his/(WA Ar authorized capacity(ft), and that by hL0w/ttyjir signature(O( on the instrument the person(g, or the entity upon behalf of Pr7nu6 SHINN which the person(o`acted, executed the instrument. Commission a 1956275 z 1 certify z Notary.Public - Callfornia under PENALTY OF PERJURY under the laws %MvComm.Ex ites z San Diego County of the State of California that the foregoing paragraph is Nov 9, 2075 true and correct. WITNESS my hand d official seal. n 1 Place Notary Seel Atwve Si9netum of Notary Public OPTIONAL (° Though the information below is not required bylaw, it may prove 1 valuable to persons'relymg on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document /��,/ �[ , J^ Title or Type of Document: I /rY/ /'4a1it%LIGNr lACI L>'T21- tXlfI/NTtN Document Date:' d 12 I Number of Pages: Signer(s) Other Than Named Above Jan /� /� / YE fii✓t� /C /A L • �i/E Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual ❑ Individual ❑ Corporate Officer— Title(s): ❑ Cot rporate Officer— Title(s): El Partner — ❑ Limited F-1 General _ El Partner Limited ❑ General _ El Attorney in Fact ❑ Attorney in Fact • - ❑ Trustee Top of thumb here ❑Trustee Top of thumb here ❑ Guardian or Conservator ❑ Guardian or Conservator ❑ Other: ❑ Other: Signer Is Representing: Signer Is Representing: 02007 National Notary Aeeociatlon• 930 De Soto Ave., P.O.Box 2402•Chatrrmr ,CA 91313- 2402,w NationelNotary.org Rein #5907 Reorder Call T011-Free1-d00A]fif 7 CERTIFICATE OF (Storm Water A Facilities Maintena G13 -0( :EPTANCE Igement Agreement) This is to certify that the interest in real property located in the City of Poway conveyed by the Grant of Easement described in Item 4 of the attached document dated: from Dye Joint Revocable Trust to the City of Poway agency, is hereby accepted by the undersigned c pursuant to authority conferred by Resolution No. 34 Dated: CITY OF Seal: By: political corporation and /or governmental !r or agent on behalf of the City Council on January 20, 1981. Y Sheila R. Cobian, City Clerk City of Poway SWMFMA Dye Sport Court G13 -0002 I Page 6 EXHIBIT OPERATION & MAINTENANCE PLAN The operation and maintenance of the proposed the project proponent and will enter info a S1 DISCHARGE CONTROL MAIN'T'ENANCE , Below describes the operation and maintenan including a routine action, maintenance indicato and maintenance activity. Costs associated with IMPLEMENTATION AND Bioretention Cells The primary maintenance requirements for • Mulching (typically every 2 -3 years) • Minimi e sediment flow into the landscaped • Weed, prune, and water, especially during p] • . Keep landscape healthy and clean Aesthetic maintenance is important for Functional maintenance is important for p Both forms of maintenance will be combined' system maintenance. A. Aesthetic Maintenance The following activities will be included in the • Replace dead or dying plants. • Weed Control. Weeds will be removed th not be used because these chemicals may: • Prune overgrown plants. 0 Functional Maintenance X reatmenf BMPs are the responsibility of 1RM WATER MANAGEMENT AND iREEMENT with the City of Poway. associated with the proposed BMPs field measurement methods, frequency, ach activity are included. REQUIREMENTS are as follows: establishment acceptance of storm water facilities. ice and safety reasons. into overall storm water management maintenance program: mechanical means. Herbicide will the water quality monitoring. Components of a Functional. Maintenance Corrective Maintenance. a. Preventive Maintenance Preventive maintenance activities to be include Preventive Maintenance and at a Bio- Retention Basin are: • Trash and Debris. During, each inspection and maintenance visit to the site, debris and trash removal will be conducted to reduce the potential for inlet and outlet structures and other components from becoming, clogged and inoperable during storm events. e e Sediment Removal'., Sediment accum maintenance program at a Bio - Retentic during the dry season, after every large wet season. Specifically, if sediment r could interfere with flow or operati accumulation of debris or sediment is design performance, prompt action (i.e., restore the Bio- Retention Basin to des include removal of sediment and replan and Appropriate disposal of sediment v state, or federal requirements. Removal of Standing Water - Standing the development of aquatic plant commi standing for more than 96 hours will be and the mulch in the basin will be in standing water. ation, as part of the operation and Basin, will be monitored once a month )rm (0.50 inch), and monthly during the ches a level at or near plant height, or y the sediment will be removed. If :termined to be the cause of decline in rithin ten working days) will betaken to n performance standards. Actions will rent of clogged mulch. Characterization 1 comply with applicable local, county, must be removed if it contributes to s or mosquito breeding areas. Water ,ved and outflow orifice and the soil ed to determine the reason for the • .Fertilization - The vegetation seed mix has been designed so that fertilization and irrigation is not necessary. Fertilizers will not be used to maintain the vegetation. o Corrective Maintenance Corrective maintenance is required on an problems and to restore the intended opej Basin. Corrective maintenance activities it e Removal of Debris and Sediment - SedimE hydraulic functioning of a Bio - Retention will be removed.and,properly disposed. handling the sediments until a permaner re- established after sediment removal. ;ency or non- routine basis to correct and safe. function of a Bio- Retention debris, and trash, which impede the >in and prevent vegetative growth, igements will be made for made. Vegetation will be • Structural Repairs — Structural repairs would be necessary if the standpipe is damaged or if there: is, evidence that the perforated: pipes are not draining. Once deemed necessary, repairs to structural components of a Bio - Retention Basin and its inlet and outlet structures will be done within 10 working days. Qualified individuals (i.e., the designers or contractors) will conduct repairs where structural damage has occurred. e Embankment and Slope Repairs — Damaged to slopes and embankments will be evidenced by erosion or collapsed surface areas. Once deemed necessary, damage to the embankments and slopes of the Bio- Retention Basin will be repaired within 10 working days). • • Erosion Repair — Erosion will be evide: the basin walls and slopes. Corrective and any subsequent danger to the per are a number of corrective actions thi measures such as erosion control bl, Designers or contractors will be con solution is not evident. Elimination of Animal Burrows - At mounds) will be filled and steps tak problems continue to occur (filling ar vector control specialists will be cc consulting is necessary as the threat of animals being destroyed rather than affected, abatement will begin. Otherwi in September. • General Facility Maintenance - In a, maintenance, general corrective main its associated components. If cord component, other components will be Corrective maintenance activities for O Erosion Repair • Replace dead or dying plant material Pervious/Porous Pavement o Preventive Maintenance • Minimize use of salt or grit for by rills or small gullies in the surfaces of cps will be taken to prevent loss of soil mance of a Bio - Retention Basin: There can be taken. These .include temporary cets or reduced flow through the area. ted to address erosion problems if the al burrows (evidenced by holes and to remove the animals if burrowing compacting). If the problem persists, Lilted regarding removal steps. This )ies in some areas may necessitate the ocated. If the BW performance is abatement will be performed annually to the above elements of corrective e will address the overall facility and maintenance is being done to one ted to see if maintenance is needed. Cells include: • Keep landscaped areas well ma • Prevent soil being washed onto o Corrective Maintenance • Sweep the surface • Inspect openings annually; if routine c rates, then: • reconstruction of part of the whole • The surface area affected by hydra inspection of the internal materials the blockage. • Surface materials, should be lifted geotextiles may need complete rep • Sub - surface layers may need clean Removed silts may need to be disposed of as Debris and Sediment Disposal does not restore infiltration a pervious surface may be required. ;.failure should be lifted for identify the location and extent of replaced after brush cleaning. and replacing. waste. Waste generated at these treatment devices is, ultimately the responsibility of the developer and site owner. Disposal of sediment, debris, and trash will comply with applicable local, county, state, and federal waste control programs. Hazardous Waste It is not anticipated that hazardous waste will suspected hazardous wastes will be analyzed to wastes generated onsite will be handled and dis state, and federal regulations. A solid or liquid w; exceeds the criteria listed in the CCR, Title 22, A Maintenance Costs A detailed cost breakdown for the operation & n BMP are attached and made part of this document. BMP are: Bioretention Cells = $5,171.70 Porous pavement= $365.00 generated from the site; however, ermine disposal options. Hazardous �d of according to applicable local, is considered a hazardous waste if it e 11. iintenance of each treatment control Total estimated annual costs for each