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Storm Water Trash Management Facilities Maintenance Agreement 2019-0451657 • DOC# 2019-0451657 )(91) 1111111{11111111111111111111111111111111111111111111111I1 11111 1111 1111 • Oct 09, 2019 02:58 PM RECORDING REQUESTED BY: OFFICIAL RECORDS Ernest J. Dronenburg, Jr., CITY OF POWAY SAN DIEGO COUNTY RECORDER FEES: $0.00 (SB2 Atkins: $0.00) AND WHEN RECORDED MAIL TO: PAGES: 12 • CITY CLERK _-.___ CITY OF POWAY P O BOX 789 POWAY, CA 92074 (THIS SPACE FOR RECORDER'S USE) APN: 317-271-01, 317-271-07, 317-271-12, 317-271-13 & 317-271-18, 317-271-90, 317-271-91, 317-271-92, 317-271-93, &317-271-94 STORM WATER TRASH MANAGEMENT FACILITIES MAINTENANCE AGREEMENT Tech Center West (G17-0003) ' The undersigned grantor(s)declares: Documentary Transfer Tax is$-0-pursuant to R&T Code 11922(conveyance to a Government Agency) This AGREEMENT for the maintenance and repair of certain Storm Water Trash Facilities is entered • into between the Property Owner(s) Tech Business Center Ventures LP., (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 orthe 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"), which is being developed into seven industrial buildings, in accordance with applications for a Development Review. 16-016 and Grading Permit Number.G17-0003, which are on file with the CITY. This Agreement is required as a condition of approval for such development. WHEREAS, in accordance with the California Regional Water Quality Control Board San Diego Region Order Number R9-2017-0077, (hereinafter referred to collectively as "Trash Amendment"), the City of Poway's Stormwater Management and Discharge Control Ordinance, Poway Municipal Code, Chapter 13 and 16 (the "Stormwater 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 trash generation from the PROPERTY be managed by the use of the following Storm Water Trash Management Facilities which are identified as "Best Management Practices" or"BMPs": Six trash capture devices located throughout the site as shown on Exhibit"B". The manner and standards by which the BMPs must be repaired and maintained in order to retain their effectiveness and the approximate location of the BMPs are as set forth in the Operation and Maintenance Plan (hereinafter "O&M PLAN"), which is attached hereto and incorporated herein as Exhibit "C". Because additional area may require the addition of or alteration of storm water trash management facilities and strategies,,no additional drains may be added to the project site Without prior approval from the City Engineer. 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:. 1. Incorporation of Recitals.The recitals set forth above are incorporated herein by this reference and constitute a part of this AGREEMENT 2. Maintenance of Storm Water Trash 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 TRASH AMENDMENT and Stormwater 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 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. 3. 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. 4. 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 setforth 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, SWTFMA Tech Center West (G17-0003) Page 2 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 sail 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 partiespursuant to the procedures set forth in Poway Municipal Code Chapter 8.72. 5. 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. 6. 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 7. Defense and Indemnity: CITY shall not be liable for,and OWNER and its successors ininterest 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(specifically including but not limited to OWNER's alleged noncompliance with the Trash Amendment or the Stormwater Ordinance), 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 jurisdictionthat 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 unlessotherwise provided by applicable law. 8. Allocation of Costs. Following the sale or transfer of any individual residential lots by OWNER, the cost of the MAINTENANCE ACTIVITIES required by this Agreement shall 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. SWTFMA Tech Center West (G 17-0003) Page 3 9. 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 theheirs, 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 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. 10. 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. 11. Amendment andRelease. 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 a 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. 12. 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 thatany 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: Tech Business Center Ventures LP., a California Limited Liability Partnership By: Date: Y//8/01/?' . `;a• Guzman4ice President (signatures must be notarized) SWTFMA Tech Center West (G17-0003) • . • , Page 4 CALIF :=NIA :LL-P ';POSE OK: LE-4 G ENT CIVIL CODE§ 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State of California County of SAN DIEGO On 9/18/19 before me, Nancy C. Lane, Notary Public Date Here Insert Name and Title of the Officer personally appeared Raul Guzman Name(s) of Signer(s) Fi who proved to me on the basis of satisfactory evidence to be the personO whose name(0) is/ate subscribed to the within instrument and acknowledged to me that he/she/they.executed the same in his/ter/ter authorized capacity(ies),and that by his/tar/fir signature(e)on the instrument the person($, or the entity upon behalf of which the person(s) acted, executed the instrument. ' I certify'under PENALTY OF PERJURY underthe laws of the State of California that the foregoing paragraph NANCYC.LANE is true and correct. f' J Notary Public-California San Diego County °W' � WITNESS my-hand and official weal. • Commission#2295647 My Comm,Expires Jut 26,2023 Signature (� Signature f Notary Public Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Storm Water Trash Management Facilities Maintenance Agreement Document Date: Number of.Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑Corporate Officer - Title(s): ❑Corporate.Officer — Title(s): ❑ Partner — ❑ Limited ❑General ❑ Partner— ❑ Limited ❑General ❑ Individual ❑Attorney in Fact ❑ Individual ❑Attorney in_Fact. ❑Trustee ❑Guardian or Conservator ❑Trustee ❑Guardian or Conservator' ❑Other: ❑ Other: Signer Is Representing: Signer Is.Representing: "y'•+Y' ':N'./,.-�•'�/.•N'yr-6r..'�..•+.1"Q7'Gd' L' lSf'b-0'.:ll.•d..•d.,-4"A'•9�/,=�H'6'd'd='!/6•d''d..`�✓ -.V'.:a6'.Y,"tel'.Y,'Y.:=N Q/'y6`pdr't!.•`i'n'�=d'.•p/=` ©2016 National Notary Association •www.NationalNotary.org • 1-800-US NOTARY(1-800-876-6827) Item#5907 i CITY OF POWAY: Al a6—.)) Date: l6 7 , Robe J Manis i‘ . 4 Director of Development Services (signature must be notarized) APPROVED AS TO FORM: APPROVED AS TO CONTENT: Office of the City Attorney Engineering Division , WO' 01 ----7.):::---:7 °.°' Alan Fenstermacher, City Attorney Thomas R. Frank, P.E. City Engineer Attachments 1. Certificate of Acceptance 2. Exhibit "A"— Legal Description . 3. Exhibit "B"— BMP DMA Mapbook 4. Exhibit "C"--O&M Plan Maengservlengservleng forms\Land Development Forms\TFMA.docx SWTFMA Tech Center West (G 17-0003) Page 5 CALIFORNIA "LL-PUPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 • -c. A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State of California County of San Diego On October 8, 2019 before me, Yvonne Mannion Notary Public Date Here Insert Name and Title of the Officer personally appeared Robert J. Manis Name(s) of Signer(s) 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), and that by his/her/their signature(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. 31NyP.0"'44,, YVONNE MANNION WITNESS my hand and official seal. : c-Cimia z z San Diego County n , kAL.41 Commission#2201766 ' My Comm.Expires Jun 18,2021 Signature \;L1OiL l s-n.i.2 OA) (7 \ Signature of Notary Public Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document:Storm Water Trash Management Facilities Maintenance Agreement G17-0003 Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑General ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑Attorney in Fact ❑ Individual ❑Attorney in Fact ❑Trustee ❑Guardian or Conservator ❑Trustee ❑Guardian or Conservator ❑Other: ❑ Other: Signer Is Representing: Signer Is Representing: ©2016 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY(1-800-876-6827) Item #5907 . CERTIFICATE OF ACCEPTANCE (Storm Water Trash Management Facilities Maintenance 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 5 of the attached document dated q I i 3 1101 , from Tech.Business Center Ventures LP., a California Limited Liability Partnership, 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. 17-007 adopted on April 18, 2017. Dated: Wilk/ CITY OF POWAY / ' Seal: By: As 1. J j /,/ 1 _ R••ert J. Manis l 0 OF Pokl Department of Development 'ervices 00040,, iiiiiiIiiiiiiiii414, la hih,F cm,I1 THE Cp���4 SWTFMA Tech Center West (G17-0003) Page 6 • 1 , .EXII I =IT "Ain" LOTS 1, 6, 7,12, 13 & 18 OF CITY OF POWAY TRACT 86-02R(1)POWAY CORPORATE CENTER UNIT 1, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO,STATE OF CALIFORNIA,ACCORDING TO MAP THEREOF NO. 12853, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY,AUGUST 19, 1991. - PARCELS 1, 3;4, 5, 6, OF PARCEL MAP NO. 16740, IN THE CITY OF POWAY,COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY-RECORDER OF SAN DIEGO COUNTY, JANUARY 10, 1992. • • • • • EXHIBIT B • • _y r . .."` ,A,P * SHEET 1 OF 1 • , ...1 . dO4� ' z 1 .00 .••...... a J 00) . BI®FILTi- TION AI m c® • BASIN-A2 '� I 1 ._. _ _ _ ›.- ' FLINT ��. ti �►— 0 '' '�i1� � �wai� LEGEND . ,ellitim 0 OUTLET STRUCTURE I' W/TRASH CAPTURE DEVICE • 0 I / [ I ' . — :• INSTALLED= MODULAR a b a � ' CONNECTOR (18') PIPE r"'' ; SCREEN •. la? I O m. . STORM DRAIN do4 LOCATION 0 7~`' a `'> ,- I� ER 1 .4 " . . . Nr d BIOFILTRATION " 65 :� 0 ®� BASIN- r �i� 7�. I..��, a , , 7 .'Nil PAI . . _ NS PL. — 0 Ali-- • — 1 ri.7.711-7117 ''' . r �•,r►'4 a BIOFILTRATION. - ' _ . BASIN-E r : St :e b a 9ill..� e� ©T !"I d®4 • a • © d1� a 1 . . I - Nti : s', . dO4 m Il' ,1', ': a d, 1 r/� CI ®,cicF a I SCALE 1"=130' 1 DEAR:ORN PL. ill . i . ' • r) .. u, f -� I a f • r/ a.69 ;,;:i 1 g.lii- - - , a . • , d ! 0 It I'. . I • 1Y Exhibit Pa Modular Connector Pipe Screen - Maintenance Guidelines Note: Modular CPS devices should be maintained by individuals who are trained in proper disposal procedures, confined space entry and traffic safety regulations. When servicing a Modular CPS device be sure to follow all safety and traffic control protocols as well as wearing all proper Personal Protection Equipment (Gloves, Safety Glasses, Hard-Hat,Safety Vest and Work Boots). Visual Inspection: 1. Begin by inspecting the inflow of the catch basin where the Modular CPS device is located. Check for any obstructions to inflow of the CB unit. If any large obstructions are found, have them removed. Once the inflow inspection is completed, remove the man-hole cover for further inspection. (Note:Confined Space Entry Procedures may apply if trained personnel intend to enter the interior space of any Catch Basin. Please follow all applicable confined space entry procedures) 2. Remove the manhole cover and visually estimate the amount and types of debris found in the CB unit. Look for any visual signs of damage that may compromise the CB unit to function properly. Inspect for any standing water in the CB unit as well as for large amounts of sediment and debris 1IPage Exhibit C surrounding the Modular CPS device. If standing water and high sediment volume is found, remove water, sediment and debris by vacuum truck,or by other debris removal methods. Cleaning Procedures and Frequencies: 1. Like all other storm water BMP's, Modular CPS devices require periodic maintenance. Routine inspection and maintenance intervals-for all CPS devices are typically 2x/year for inspections and 1x/year maintenance service. Modular CPS devices may require more frequent maintenance service if the device is located high debris loading drainage areas, such as certain downtown areas, retail/restaurant or residential areas'where a significant amount of vegetation/foliage is located. In such cases, Modular CPS devices may require more frequent inspection and maintenance service,which could range from 2x/year to 8x/year inspection and maintenance service, depending on pollutant load conditions. 2. To begin Modular CPS cleaning procedures, conduct a visual inspection of the CPS device and the surrounding area to ensure a safe working environment. Setup appropriate barriers and signage as necessary to establish a Work Zone surrounding the catch basin. Once the Work Zone has been established, remove the man-hole cover from the catch basin. 3. Once the man-hole cover is removed from basin the Modular CPS is ready for servicing.All debris can be removed by either a vacuum truck or manually removing sediment and debris by hand. 4. Modular CPS devices shall be cleaned using a pressure washer as may be necessary if any materials are found to cause occlusion or clogging of the screen. Disposal: 1. All trash and debris removed from the Modular CPS unit shall be disposed of in accordance with local, state and federal regulation. 2. Solid waste disposal can be coordinated with local landfills. Liquids may need to be disposed of by wastewater treatment plant, municipal vacuum truck decant facility or approved facility. 2IPage