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Storm Water Trash Facilities Maintenance Agreement 2022-0349674RECORDING REQUESTED BY: CITY OF POWAY AND WHEN RECORDED MAIL TO: CITY CLERK CITY OF POWAY P O BOX 789 POWAY, CA 92074 APN: 317-280-56 DOC# 2022-0349674 IIII IIII II11111111111111111111111111111111111111111111111111111111 Sep 01, 2022 08:44 AM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER FEES: $47.00 (SB2 Atkins: $0.00) PAGES: 12 (THIS SPACE FOR RECORDER'S USE) STORM WATER TRASH FACILITIES MAINTENANCE AGREEMENT 12365-12367 Crosthwaite Circle (B19-2487/TA20-022) The undersigned grantor(s) declares: Documentary Transfer Tax is $ -0- pursuant to R & T Code 11922 (conveyance to a Government Agency) This STORM WATER TRASH FACILITIES MAINTENANCE AGREEMENT (hereinafter referred to as this "AGREEMENT") is entered into between Sorrento West Properties, Inc., a Delaware corporation, (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 developed in accordance with applications for Building Permit Number B19-2487, 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 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": Two (2) StormTek Filters (model # ST3G) and five (5) Litta Trap Full Trash Capture inserts 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 B19-2487. The manner and standards by which the BMPs must be 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 4846-9192-7982.v1 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 during their respective periods of ownership of the Property. It is intended that these obligations be enforceable in accordance with the terms of this AGREEMENT notwithstanding other provisions related to BMP maintenance that are provided by law to the extent this AGREEMENT is not in conflict with such laws. 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: 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 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 upon written request by CITY. OWNER shall, or shall cause its tenant to, 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 shall, prior to transferring ownership of any portion of the PROPERTY 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, which notice may be effected by providing such transferee with 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 but reasonable judgment, OWNER has failed to perform the same within a reasonable time after written notice thereof from CITY to OWNER. Such MAINTENANCE ACTIVITIES 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 ACTIVITIES performed by the CITY, it may be performed by CITY forces, or a contractor hired by the CITY, at the CITY's sole SWTFMA (1319-2487/TA20-022) Page 2 4846-9192-7982.v1 election provided that the same are in compliance with the O&M PLAN. 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 ACTIVITIES 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 in accordance with this Paragraph 4. OWNER's obligation to pay CITY's costs of performing such MAINTENANCE ACTIVITIES is a continuing obligation. If OWNER fails to pay CITY's costs for performing such MAINTENANCE ACTIVITIES, CITY may assess a lien on the Property 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 non-exclusive perpetual easement over, under and across all of the PROPERTY, solely 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, upon reasonable prior written notice to OWNER, to enter upon any part of said area as may be necessary or convenient for such purposes. OWNER shall maintain the PROPERTY so as to make CITY's access for such permitted purposes clear and unobstructed; provided, however, CITY shall comply with OWNER's, or its tenants', reasonable security requirements in connection with any such access. 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 SWTFMA (B 1 9-2487/TA20-022) Page 3 4846-9192-7982.v1 CITY PARTIES shall have absolutely no responsibility or liability therefore unless otherwise provided by applicable law. 8. Allocation of Costs. In the event the PROPERTY is composed of multiple legal lots, then, following the sale or transfer of any such individual lot(s) by OWNER to a third party, the cost of the MAINTENANCE ACTIVITIES required by this AGREEMENT shall be divided equally among all lot owners within the PROPERTY, and paid by each such lot's current owner or, if applicable, his, her, or its heirs, assigns and successors in interest. This requirement shall be binding on all lot owners of lots located within the PROPERTY, and each shall be responsible for his, her, or its pro rata share of the cost associated with the MAINTENANCE ACTIVITIES required by this AGREEMENT during his, her, or its period of ownership of such lot(s), calculated based on the useable acreage of each such lot in relation to the aggregate useable acreage of all lots which are part of the PROPERTY. 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 for the period of each such party's ownership of the PROPERTY (or portion thereof), 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 license 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 during the period of their respective ownership thereof, who shall be deemed to have consented to and become bound by all the provisions hereof upon such purchase or acquisition. 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 the then -current OWNER of or otherwise affect the then -current 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 an current or previous 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, whichever then holds title to the PROPERTY (or portion thereof). 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. SWTFMA (B 1 9-2487/TA20-022) Page 4 4846-9192-7982.v1 IN WITNESS WHEREOF, the parties have executed this AGREEMENT on the dates set forth hereinafter. OWNER: SORRENTO WEST PROPERTIES, INC., a Delaware corporation Date: -Joseph ff. Maskalenko Senior Vice President (signature must be notarized) SWTFMA (B19-2487/TA20-022) Page 5 4846-9192-7982.v1 CALIFORNIAALL-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 an 1 eo,o ) On before me, Date Here Insert Name and Title of t e Officer personally appeared Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person' whose name(") is/ subscribed to the within instrument and acknowledged to me that he/swe/tl)ey executed the same in his/her/their authorized capacity(ies), and that by his/herAfteir signature(s) on the instrument the personO, or the entity upon behalf of which the person(,$) acted, executed the instrument. 0my JOYCE E. ZACHMAN Notary Public • California San Diego County Commission # 23772b3 Comm. Expires Oct 2, 2 5 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 gnature of t ry 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: 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: ©2014 National Notary Association - www.NationalNotary.org - 1-800-US NOTARY (1-800-876-6827) Item #5907 CITY OF POWAY: Date: Roe h J. Manis Direcfor of Development Services (signature must be notarized) APPROVED AS TO FORM: Office of the City Attorney a& C Alan Fenstermacher City Attorney Attachments 1. Certificate of Acceptance 2. Exhibit A — Legal Description 3. Exhibit B — Site Plan 4. Exhibit C — 0 & M Plan APPROVED AS TO CONTENT: Engineering Division Mel R, P.E. City Engineer SWTFMA (131 9-2487/TA20-022) Page 6 4846-9192-7982.0 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 August 3, 2022 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. YVONNEMANNION = Notary Public • California = San Diego County r Commission N 2363699 My Comm. Expires Jul t, 2025 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 ilxmi"..(?_ 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: Strom Water Trash Facilities Maintenance Document Date: 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: reement B19-2487/TA20-022 Number of Pages: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator Other: Signer Is Representing: 02016 National Notary Association - www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 CERTIFICATE OF ACCEPTANCE (Storm Water Trash 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 5 II Q 12,2 , from Sorrento West Properties, Inc., a Delaware Corporation, 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: 11,2- _ CITY OF POWAY Seal: By: obert J. Ma is Department of DevelopmeriLervices SWTFMA (B19-2487/TA20-022) EXHIBIT "A" REAL PROPERTY DESCRIPTION ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: PARCELS 101, 102 AND A PORTION OF PARCEL 103 OF PARCEL MAP NO. 16320, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, DECEMBER 10, 1990, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: PARCEL 1 AS SHOWN ON BOUNDARY ADJUSTMENT CERTIFICATE OF COMPLIANCE BOUNDARY ADJUSTMENT NO. 91-06, AS EVIDENCED BY DOCUMENT RECORDED JULY 01, 1992 AS INSTRUMENT NO. 199200414194 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEASTERLY CORNER OF PARCEL 105 OF PARCEL MAP NO. 16320, AS FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY DECEMBER 10, 1990 AS FILE NO.90-655448 OF OFFICIAL RECORDS; THENCE, NORTH 390 45' 33" WEST 618.40 FEET; THENCE, NORTH 000 07' 57" EAST 584.60 FEET; THENCE, SOUTH 880 28' 24" EAST 290.00 FEET; THENCE, SOUTH 000 07'57" WEST 46.94 FEET; THENCE, SOUTH 820 46' 00" EAST 506.32 FEET; THENCE, SOUTH 630 08' 00" EAST 170.54 FEET; THENCE, NORTH 880 08' 00" EAST 253.23 FEET; THENCE, SOUTH 030 5 V 02" WEST 673.92 FEET; THENCE, SOUTH 870 26' 00" WEST 482.83 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHEASTERLY WITH A RADIUS OF 324.50 FEET; THENCE, ALONG SAID CURVE CENTRAL ANGLE 600 48' 13" A LENGTH OF 344.37 FEET TO THE POINT OF BEGINNING, A RADIAL TO SAID CURVE BEARS NORTH 630 22' 13" WEST. EXCEPTING THEREFROM ALL MINERALS, OILS, GAS, PETROLEUM, OTHER HYDROCARBON SUBSTANCES AND ALL UNDERGROUND WATER IN OR UNDER OF WHICH MAY BE PRODUCED FROM SAID PROPERTY WHICH UNDERLIES A PLANE PARALLEL TO AND 500 FEET BELOW THE PRESENT SUFACE OF SAID PROPERTY FOR THE PURPOSE OF PROSPECTING FOR, THE EXPLORATION, DEVELOPMENT, PRODUCTION, EXTRACTION AND TAKING OF SAID MINERALS, OIL, GAS, PETROLEUM, OTHER HYDROCARBON SUBSTANCES AND WATER FROM SAID PROPERTY BUT WITHOUT THE RIGHT TO ENTER UPON THE SUFACE OR ANY PORTION THEREOF ABOVE SAID PLANE PARALLEL TO AND 500 FEET BELOW THE PRESENT SUFACE OF THE SAID PROPERTY FOR ANY PURPOSE WHATSOEVER. APN: 317-280-56-00 'LIT 0 Cl) m 0 m z 0 DO I Of 2) a < (j) r.l. (D " o "0 cr 60 co I- 2) �* _q M fD 0 Q. 0 351 EXHIBIT C OPERATION AND MAINTENANCE PLAN A. SWIMS — STG3-StormTek, Full Trash Capture (FTC) Insert, Enviropod Litta Trap Filter Full Trash Capture (FTC) Insert. Inspections shall occur two times per year (one in the dry season and one prior to the first qualified rain event) and after major rainfall events. FTC insert will be inspected, and digital reporting performed. All inspections completed will be logged. Remove the grate and use a vacuum truck or industrial vacuum to remove the trash and debris that has collected against the filter.