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Storm Water Trash Facilities Maintenance Agreement 2022-0243978RECORDING REQUESTED BY: CITY OF POWAY AND WHEN RECORDED MAIL TO: CITY CLERK CITY OF POWAY P 0 BOX 789 POWAY, CA 92074 DOC# 2022-0243978 1111111111111111111111111111111111111111111111111111111111111111111 Jun 10, 2022 08:58 AM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER FEES: $0.00 (SB2 Atkins: $0.00) PAGES: 13 (THIS SPACE FOR RECORDER'S USE) APN: 317-225-04 STORM WATER TRASH FACILITIES MAINTENANCE AGREEMENT 12520, 12528, 12544 and 12556 Kirkham Ct (B21-1413/TA21-017) 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) Harsch Investment Properties, LLC, an Oregon 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"). City is requiring this this Agreement in accordance with Chapter 13.09 of the Poway Municipal Code related to a permit required for a tenant to conduct a tenant improvement project on Owner's Property. 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 Trash Facilities which are identified as "Best Management Practices" or "BMPs": Eight (8) Flexstorm Grate inlet filters located throughout the site as shown on Exhibit "B". The precise location(s) and extent of the BMPs are indicated on the approved plans on file with City's Development Services Department as B21-1413. 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 impervious area may require the addition of or alteration of storm water facilities SWTFMA (B21-1413/TA21-017) Page 1 and strategies, no impervious area or 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 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 reasonable 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 will make commercially reasonable efforts prior to transferring ownership of the Property to provide the transferee a copy of this agreement. 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 after thirty (30) days written notice to Owner to perform any such Maintenance Activities. Such maintenance by the City may 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 after the Owner has failed to do so after the 30-day written notice, 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, shall be deemed to be accepted by Owner "as is", and shall be covered by Owner's indemnity SWTFMA (B21-1413/TA21-017) Page 2 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 of no Tess than thirty (30) days, then Owner shall pay all of City's reasonable costs incurred in performing the Maintenance Activities, plus a reasonable 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. Right of Entry. For so long as this Agreement remains in effect, Owner hereby grants to CITY a perpetual right of entry 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 2 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 or Owner's, 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 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. N/A. 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 SWTFMA (B21-1413/TA21-017) Page 3 upon all persons purchasing or otherwise the Property. On the transfer of the Property, the transferor shall be released from all liability to the City under this Agreement and the transferee Owner shall be solely liable to the City on the transfer date and such transferee 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. N/A. 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's authorized representatives 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. OWNE' . Ha sch Investment Properties, LLC, an Oregon limited liability company William H. Rodewald, Senior Vice President (Signature Must Be Notarized) SWTFMA (B21-1413/TA21-017) Page 4 Date: / 2_? / 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 A N DIeGo On `L- 2021 before me, N . M M. ,NSM N 1 N O--Adzy eoe,LA Here Insert Name and Title of the Officer W ILl,l�h/v� -11 . t w, p yvOvMr3Ei/2- Date personally appeared 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/shoe/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. M. M. HAUSMANN Notary Public - California San Diego County Commission # 2251011 My Comm. Expires Aug 20, 2022 Place Notaty Seal Above WITNESS my(,hand and official seal. Signature OPTIONAL Signature of 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: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: El 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: Signer's Name: ❑ Corporate Officer — Title(s): ©2014 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 CITY OF P/WAY: Date: Ro er J.'Manis Director of Development Services [NOTARY ACKNOWLEDGEMENT TO FOLLOWJ APPROVED AS TO FORM: Office o, the City Attorney 4/ Alar'(Fenstermacher City Attorney Attachments 1. Exhibit A — Legal Description of Property 2. Exhibit B — Location of BMPs 3. Exhibit C — Operation and Maintenance Plan SWTFMA (B21-1413/TA21-017) Page 5 APPROVED AS TO CONTENT: Engineering Div i ion M •dy occ , P.E. City Engineer 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 May 17, 2022 Date before me, 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. iw �► A w a w.s. .ew rf YVONNE MANNION Notary P;.blic - California z San Diego County1. Commission # 2363699 My Comm. Expires Jul 1, 2025 --E Place Notary Seal Above I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature Signature of Notaty 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 Trash Facilities Maintenance Agreement B21-1413/TA21-017 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 ❑ Trustee ❑ Other: ❑ Attorney in Fact ❑ Guardian or Conservator Signer Is Representing: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — 0 Limited 0 General 0 Individual 0 Attorney in Fact 0 Trustee ❑ Guardian or Conservator 0 Other: Signer Is Representing: ©2016 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 EXHIBIT "A" Legal Description Property located in San Diego County, California Parcel 4 of Parcel Map No. 15618, 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 24, 1989, as Instrument No. 89-152071 of Official Records. AND BEING a portion of the same property conveyed to Harsch Investment Properties, LLC, an Oregon limited liability company from RREEF America REIT II Corp., JJ, a Maryland corporation by Grant Deed dated August 31, 2016 and recorded August 31, 2016 in Instrument No. 2016-0455938. Tax Parcel No. 317-225-04-00 EXHIBIT B_ 12544 KIRKHAM COURT, POWAY, CA 92064 if t \ GRATE INLET FILTER MFG: FLEXSTORM 62MHDFTC GRATE INLET FILTER MFG: FLEXSTORM 62LHDFTC -1 1 rafilinTri ar) co 47 0 (A) NJ * * * C 0) t-a . st w rD A- Cu fp v) Di co 0) CL cr cr) o Ln ig (D (1) MMMMMM zmmmim oc)ovc)o> WO,i8ifg5ZR., FLEXSTORM Performance Specifications - Full Trash Capture ,..., E qqzo0' E &O 4.5 o o V? VI Ultimate Bypass Cap. (CFS)* :*4 /J1 P•I P'' L7 P Storage Volume (ftA3) 1. C) VI I-, .4.1 m co ,-, bo 5' * III 2 1... Flow Rate when 50% Full (CFS)* w w w It CI!jj -n > 0 (,) o = 4, r- cv p r-r(fl FD 0 5' 3 (0 r-••• Is) • . . 0 n (0 C a— V 5 cl CD r-r 0 -n rD r- to 3 ijn< rD, g --i 0 eL 3 o 73 =.• z (1) 0 5. o(0 1:3 -a Fp' 3 0- 0 —1% -1) rE, cu () (1) tO (ID rp ct) (D r-t• rD - r) 0 v) C -rs - cr =•• c - 0r7) tin r) F-D0 - 0) 0 .0•-• c sa, (0 IL: cn g z cn (,) c m m rn r- co * > D Lrt • 3 N., 3 41 0 G) > m Zni 0 Zrn -rt m C) to x 0 -n 0 ;71., r-, rn c ca 0 -D Z:0*- ni0 z 0 cf) -n rrn - 7z7 H c 0 z 0 Z --4 (71 m cr) - n 0 7:3 v) > c z rn n Z 0 3> Z > C • • Nj CO r- Z C) Z (1ni ) (1) (i) rn ni -n H - 3 Co 4' 0 118IHX3 EXHIBIT "C" continulL RM FLEXSTORMTM Inlet Filter Specifications and Work Instructions Product: FLEXSTORM FULL TRASH CAPTURE (FTC) INSERTS Manufacturer: ADS - FLEXSTORM www.inletfilters.com A subsidiary of Advanced Drainage Systems (ADS) www.ads-pipe.com 1.0 Description of Work: 1.1 The work covered shall consist of supplying, installing, and maintaining/cleaning of the FLEXSTORM FULL TRASH CAPTURE (FTC) INSERT. The FLEXSTORM FTC INSERT is placed directly under a catch basin drainage grate in order to collect trash and debris from surface storm water runoff as part of a TMDL program, or as directed by the Engineer. 2.0 Material: 2.1 The FLEXSTORM FTC insert system is comprised of a stainless steel frame and basket with perforated openings. The basket hangs suspended from the rigid frame at a distance below the grate that shall allow full water flow into the drainage structure if the basket is completely filled with trash and debris. SUPPORT FRAMING: 12 GA 304 STAINLESS STEEL FRAMING W/LIFT HANDLES AND ADJUSTABLE FLANGES, ULTIMATE BYPASS AREA TRASH CAPTURE BASKET: 14 GA PERFORATED STAINLESS STEEL WITH 5Mfv1 OPENINGS FLEXSTORM FILTER FOR FLEXSTORM FILTER WJBOLT ON SQUARE/RECTANGULAR GRATES DEFLECTOR FOR CURB OPENINGS 2.2 The FLEXSTORM FTC frame includes lifting handles to facilitate installation and removal of the basket into and out of the drainage structure. The ultimate bypass in the frame is designed to exceed that of the design flow into the drainage structure. 2.3 FLEXSTORM FTC INSERTS for full trash capture initiatives: The FLEXSTORM FTC framing is comprised of 12GA 304 stainless steel. The active filtering component is 14GA perforated stainless steel. The steel basket is uniformly punched with 3/16" dia holes (4.8 mm) in such a pattern that the basket has 50% open area and retains any particles 5 mm or larger. FL T�t lis...11 asDM 3.0 Identification of Drainage Structures to Determine FLEXSTORM FTC Part #s, and Sizing: 3.1 The Installer (Contactor) shall inspect the plans and/or worksite to determine the quantity of each drainage structure casting type. The catch basin design, casting number, or the exact grate and clear opening size will provide the information necessary to identify the required FLEXSTORM FTC insert part number. Inserts are supplied to the field pre -configured to fit the specified drainage structure. 3.2 Standard Part Numbers and Performance Ratings: FLEXSTORM Performance Specifications - Full Trash Capture ADS- FLEXSTORM P/N Basin Size Basket Depth Ultimate Bypass Flow Rate (CFS)* Storage Volume (ftA3) Flow Rate when Empty (CFS)* Flow Rate when 50% Full (CFS)* 62HD12FTC 12 x 12 12" 0.5 0.7 6.8 3.0 62HD18FTC 18 x 18 12" 1.8 1.7 12.2 4.5 62HD24FTC 24 x 24 12" 3.0 3.1 18.6 6.3 62HD3618FTC 36 x 18 12" 4.0 3.5 20.8 7.3 62HD3624FTC 36 x 24 12" 4.5 5.0 25.1 8.3 62HD36FTC 36 x 36** 12" 8.0 7.1 41.6 14.6 * Calculated with .33' head pressure above grate ** Two 36 x 18 filter baskets placed side by side 4.0 Installation into Standard Grated Drainage Structures: 4.1 Remove the grate from the casting or concrete drainage structure. Clean the ledge (lip) of the casting frame or drainage structure to ensure it is free of stone and dirt. Lower the FLEXSTORM insert through the clear opening and be sure the suspension hangers rest firmly on the support ledge of the structure. Replace the grate and confirm it is elevated no more than 1/8", which is the thickness of the steel hangers. FLT 5.0 Inspection and Maintenance Guidelines: RM 5.1 Frequency of Inspections: FLEXSTORM FTC inspections should occur three times per year (every four months) in areas with year round rainfall. Alternatively, maintenance guidelines per the awarded contract should be followed. 5.2 General Maintenance for standard Full Trash Capture inserts: Upon inspection, the FLEXSTORM FTC insert should be emptied if the steel basket is more than half filled with trash and debris, or as directed by the engineer, city, or municipal contract. Remove the grate and use a vactor truck or industrial vacuum to collect the trash and debris that has collected in the filter. Alternatively, the basket may be lifted out of the drainage structure and trash emptied into a receptacle to be hauled away. Remove any caked on trash and debris from the steel basket to ensure proper flow. When the basket is cleaned the grate should be replaced onto the basin and maintenance logged per the stipulations of the maintenance contract. 5.3 Operation & Maintenance Plan. Download at www.inletfilters.com FLEXSTORM FULL TRASH CAPTURE (FTC) OPERATION AND MAINTENANCE PLAN FL RM FULL TRASH CAPTURE OPERATION & MAINTENANCE PLAN Installation Instructions: 1. Remove grate from the drainage structure 2. Clean stone and dirt from ledge (lip) of drainage structure 3. Drop the FLEXSTORM FTC inlet filter through the clear opening such that the hangers rest firmly on the hp of the structure. 4. Replace the grate and confirm it is not elevated more than 1/8", the thickness of the steel hangers. Frequency of Inspections: 1. inspections should occur 3 times per year or per the terms of the awarded contract. Maintenance Guidelines: 1. The basket should be cleaned if more than half filled with trash and debris, or as directed. 2. Remove the grate and use an industrial vacuum truck to remove all collected trash and debris from the filter. 3. Dispose of sediment or debris as directed by the Engineer, contract, or state laws regarding collection and disposal. DATE TASK PERFORMED INSPECTOR