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Storm Water Management Facilities Maintenance Agmt 2020-0123448RECORDING REQUESTED BY: CITY OF POWAY AND WHEN RECORDED MAIL TO: CITY CLERK CITY OF POWAY P 0 BOX 789 POWAY, CA 92074 DOC# 2020-0123448 IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII Mar 10, 2020 12:37 PM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER FEES: $0.00 (SB2 Atkins: $0.00), PAGES: 11 (THIS SPACE FOR RECORDER'S USE) APNs: 317-153-24 through 27 STORM WATER MANAGEMENT FACILITIES MAINTENANCE AGREEMENT Pomerado Plaza (TAI 9-002) 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(s) Poway-Nierman Limited Partnership, (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 undergoing interior improvements, in accordance with application for building permit B19-1746, which is 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 storm water runoff and trash generation from the PROPERTY be managed by the use of the following Storm Water Management Facilities which are identified as "Best Management Practices" or "BMPs": Ten (10) devices located throughout the site as shown on Exhibit "B". The precise location(s) and extent of the BMPs are indicated on the approved building plans on file with CITY's Development Services Department as B19-1746. The manner and standards by which 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 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 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 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 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 ree obligations under this agreement. If CITY elects to perform any of the MAINTENANCE g g 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 SWMFMA (TAI 9-002) Page 2 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 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. 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. 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. SWMFMA (TAI9-002) 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 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. 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 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. 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 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. 13. Attorney's Fees. The prevailing party in any action or proceeding to enforce or interpret the terms of this Agreement shall be entitled to recover all of its reasonable litigation expenses, including its expert fees, attorneys' fees, courts costs, arbitration costs, and any other fees. IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth hereinafter. OWNER: Poway-Nierman Limited Partnership man ' omer.do, GP, LLC eneral Partner) James S. Nierman, Manager Date: /'a—aD 44cxb&d� noo.y,; (signature must be notarized) SWMFMA (TA1 9-002) Page 4 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 D0J) ) County of� On iSan pa- � before me, t�h�0� %1n'es1 0'O(l� I � � , Date personally appeared 1.er Here Insert Name and Title of Name(s) of Sign 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. JOSHUA GAINES Notary Public - California San Diego County Commission it 2268269 My Corm. Expires Nov 22, 2022 Place Notary Seal Above WITNESS my hand and;•, ic'. j seal. Signature OPTIONAL 'gnat % f Notary Public 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: Document Date: 1;4-its Signer(s) Other Than Named Above: PeeM Number of Pages: 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): 0 Partner — 0 Limited ❑ General 0 Individual 0 Attorney in Fact ❑ Trustee ❑ Gu for ❑ Other: Signer Is Representing: G/ice✓ ice✓/ice! ice✓ i�.� i\� ice✓ ��✓ i�✓i\� ice✓ ice✓ ice✓ i�✓i\✓ i�✓/i\� i�✓/�`� ��.� ��� ��� ��� ��� ���/��� ��� ��� ��� ��� � • � � • � � • �/ � • � � • � � • �/ • �// • �// • �// �• y/ • ✓/ ' ✓/ ' ✓/ • �/ • �// • �/ - ©2016 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 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 Ig c°R.L'Ul � �-o�A 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. I 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 Place Notary Seal Above WITNESS my hand and official seal. Signature 9/0� l/r,�,n,A:o13 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:Storm Water Management Facilities Maintenance Agreement TA19-002 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: ©2016 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 CITY OF POWAY: Date: 3/2 //° Robert/J. Manis Director of Development Services (signature must be notarized) APPROVED AS TO FORM: Office of he City Attor,ney Alan Fenstermacher, City Attorney Attachments 1. Certificate of Acceptance 2. Exhibit A — Legal Description of Property 3. Exhibit B — Location of BMPs 4. Exhibit C — Operation and Maintenance Plan APPROVED AS TO CONTENT: Engineering Division M - Iody ' cco, P.E. City Engineer M:\engserv\Land Development Projects\2019\TA19-\TA19-002 - Pomerado Plaza\Poway-Nierman SWMFMA.docx SWMFMA (TA19-002) Page 5 CERTIFICATE OF ACCEPTANCE (Storm Water 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 / , from Poway-Nierman, Limited 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: 3/2-A0 CITY OF POWAY Seal: B • obert J. Manis Department of Developent Services SWMFMA (TAI9-002) Page 6 Exhibit "A" Legal Description PARCELS 1, 2, 3, AND 4 OF PARCEL MAP NO. 13714, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, MARCH 12, 1985 AS INSTRUMENT NO. 85-080780 OF OFFICIAL RECORDS. APNS: 317-153-24 THROUGH 27 B19-1746 Trash Amendment Exhibit B CURBSIDE INLET FILTER MFG: FLEXSTORM 62HDWM48FTC: CITY OF POWAY EASEMENT FOR ADDITIONAL INFORMATION ON ACCESS AND • GRATE INLET FILTER MFG: FLEXSTORM 62HD3624FTC: CITY OF POWAY EASEMENT FOR ADDITIONAL INFORMATION ON ACCESS AND MAINTENANCE GRATE INLET FILTER MFG: FLEXSTORM 62HD3624FTC: CITY OF POWAY EASEMENT FOR ADDITIONAL INFORMATION ON ACCESS AND MAINTENANCE GRATE INLET FILTER MFG: FLEXSTORM FTC 62SHDFTC: CITY OF POWAY EASEMENT FOR ADDITIONAL INFORMATION ON ACCESS AND MAINTENANCE CURBSIDE INLET FILTER MFG: FLEXSTORM 62HDWMFTC: CITY OF POWAY EASEMENT FOR ADDITIONAL INFORMATION ON ACCESS AND GRATE INLET FILTER MFG: FLEXSTORM 62MHDFTC: CITY OF POWAY EASEMENT FOR ADDITIONAL INFORMATION ON ACCESS AND MAINTENANCE GRATE INLET FILTER MFG: FLEXSTORM 62MHDFTC: CITY OF POWAY EASEMENT FOR ADDITIONAL INFORMATION -ON ACCESS AND MAINTENANCE GRATE INLET FILTER MFG: FLEXSTORM 62MHDFTC: CITY OF POWAY EASEMENT FOR ADDITIONAL INFORMATION ON ACCESS AND MAINTENANCE GRATE INLET FILTER MFG: FLEXSTORM 62HD3624FTC: CITY OF POWAY EASEMENT FOR ADDITIONAL INFORMATION ON ACCESS AND MAINTENANCE GRATE INLET FILTER MFG: FLEXSTORM 62MHDFTC: CITY OF POWAY EASEMENT FOR ADDITIONAL INFORMATION ON ACCESS AND MAINTENANCE ;% ri . n.0o • Exhibit C e :c i.o r rou rid rainfall I owe' I ec h::ot