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Storm Water Trash Mgmt Facilities Maintenance Agmt 2020-0123443RECORDING REQUESTED BY: CITY OF POWAY AND WHEN RECORDED MAIL TO: CITY CLERK CITY OF POWAY P 0 BOX 789 POWAY, CA 92074 DOC# 2020-0123443 IIIIIIIIIIIIIIIIII IIIIIIIIIIIIIIIIIIIlIIIIIIIIIIIIIIIIIIIIIIIIIII Mar 10, 2020 12:35 PM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER FEES: $0.00 (SB2 Atkins: $0.00) PAGES: 12 (THIS SPACE FOR RECORDER'S USE) APN: 317-490-77 through 83 STORM WATER TRASH MANAGEMENT FACILITIES MAINTENANCE AGREEMENT Poway Crossings (TA1 9-003) 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) SVAP III Poway Crossings, LLC, a Florida limited liability company, (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 in Exhibit "A", hereto (hereinafter referred to as the "PROPERTY"), which is being improved in accordance with Permit Number B19-1023, which are on file with the CITY. This Agreement is required as a condition of approval for such improvement. 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": One (1) trash inlet filter located onsite 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. Recordation of this AGREEMENT shall constitute notice to any subsequent owner of all or any portion of land on which any of the above BMPS are located or of any lot of portion of the PROPERTY which is served by the above BMPS, of the above -described maintenance obligations. 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. Prior to performing such maintenance, the CITY shall notify owner in writing of OWNER'S failure to perform such maintenance activity and OWNER shall have failed to cure such failure within a reasonable period of time after receipt of such notice. 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 maintenanceperformed 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 SWTFMA (TA1 9-003) Page 2 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. 5. Grant of Easement to CITY. OWNER hereby grants to CITY a perpetual non-exclusive 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, 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 (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 jurisdiction that such claim was caused by the sole negligence or willful misconduct of CITY PARTIES or to the extent caused by the gross negligence 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. 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 SWTFMA (TA19-003) Page 3 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; unless (1) such permit is closed or transferred, and (2) such grading, construction or other land disturbance is completed as determined by the CITY or such subsequent OWNER of the PROPERTY or portion there of expressly assumes OWNER'S obligations to this Agreement in writing. 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. 12. ESTOPPEL. Within ten (10) days of OWNER'S written request, CITY will provide OWNER with written confirmation that OWNER is in compliance with the terms and requirements of this Agreement as of the date of such confirmation, or CITY will state if OWNER is not in compliance and provide reasonable detail of OWNER'S non-compliance and steps OWNER must take to remedy such non-compliance. IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth hereinafter. OWNER: SVAP III Poway Crossings, LLC, a Delaware limited liability company By: Sterling Value Ad Inve ents III, LLC, a Delaware limited liability company, its Sole Member By: SVAP III , ,LLC,, . Delaware limited liability company, its Manager By: Adam Munder, Vice President Date: -be CAmloer 110 2019 (signature must •e notarized) SWTFMA (TA19-003) Page 4 STATE OF FLORIDA SS: COUNTY OF PALM BEACH 4t, The foregoing instrument was acknowledged before me this I - dayof December, 2019, g g g by Adam Munder, as Vice President of SVAP III GP, LLC, a Delaware limited liability company, the Manager of Sterling Value Add Investments III, LLC, a Delaware limited liability company, the sole Member of SVAP . III POWAY CROSSINGS, LLC, a Delaware limited liability company, who is .personally known to me or has produced a as identification, and took an oath. Print or Stamp Name: eh / o t L • bra .c. Notary Public, State of Fiv( o'eta— Commission No.: Co (..oSi '1 r My Commission Expires: 7 • 2-S• 2-b 411.1111.011/11.411, CHLOE LEE MCCRAE Commission # GG 1 51 78 ;,e, My Commission Expires ''��;,°;,;;;��' July 25, 2020 CITY OF POAY: Date: Robert Manis Director of Development Services signature must be notarized) APPROVED AS TO FORM: Office of tj e City Attorney Ala enstermacher, City Attorney Attachments 1. Certificate of Acceptance 2. Exhibit A — Legal Description of Property 3. Exhibit B — Location of Trash Inlet Filters 4. Exhibit C — Operation & Maintenance Manual 3/2/74 APPROVED AS TO CONTENT: Engineering Division M-'odyC. City Engineer M:\engserv\Land Development Projects\2019\TA19-\TA19-003 - Poway Crossings\Poway Crossings - Storm Water Trash Facilities Agrmt.docx SWTFMA (TA19-003) Page 5 z CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT 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 AA O (oth q 0,60.2.0 before me, Date Yvonne Mannion Notary Public 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. certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. YVONNE MANNION Notary Public - California San Diego County Commission # 2201766 My Comm. Expires Jun 18, 2021 a Place Notary Seal Above WITNESS my hand and official seal. Signature ti 1/12 ala-ft ; 4 Signature of Notary Public 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:$torm Water Management Facilities Maintenance Agreement TA19-003 Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: lCr ?; — r..... y.� v W.. �o ,. ,. yam, yrJK;< ,_ CY lc�!'' ©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 .bei 11 ,aoli, from SVAP III Poway Crossings, LLC, a Florida 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. 17-007 adopted on April 18, 2017. Dated: CITY OF POWAY Seal: Bv: obert J. Manis Department of Development Services SWTFMA (TA1 9-003) Page 6 EXHIBIT A Legal Description PARCELS 1, 2, 3, 4, 5, 6 and 7 OF PARCEL MAP NO. 13750, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, APRIL 11, 1985 AS FILE NO. 85-125006 OF OFFICIAL RECORDS. Center Border 317-490-77-00 SITE LAYOUTN SCALE:1" 136' 317-490-78-00 317.-490-83-00 ' • \(ems/ „Etta��.#K .PAR 4 \\:\ \ \ 317-490-82-00 317-490-79-00 m X co NEW BIO CLEAN • BIO-CPS (CONNECTOR PIPE SCREEN) TO. BE INSTALLED PER MANUFACTURER SPECIFICATIONS i 317-490-81-00 317-490-80-00 :120219 Exhibit C A,F' rferra.C,ompany Modular Connector Pipe Screen (CPS) Operation & Maintenance (O&M) 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 such as 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 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 twice per year for inspections and once per year for maintenance service. Modular CPS devices may require more frequent maintenance service if the device is located in a high debris loading drainage area, 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 twice per year to monthly inspection and maintenance service, depending on pollutant Toad 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 manhole cover from the catch basin. 3. Once the manhole cover is removed from the basin the Modular CPS is ready for servicing. All debris can be removed byeithera .vacuum truck or manually removingsediment 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. For maintenance services please contact Bio Clean at: 760-433-7640 infoAbiocleanenvironmental.com