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Bioretention Encroachment Maintenance Agreement 2014-0488852�Q RECORDING REQUESTED BY: City of Poway 'Il WHEN RECORDED MAIL TO: City Clerk City of Poway P.O. Box 789 Poway, CA 92064 APNs: 320 -220 -08 & 320 - 220 -23 D a C # 2014-0488852 1111111111111111111111111111111111111111111111111111111111111111111 IN NOV 10, 2014 9:28 AM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE Ernest J. Dronenburg, Jr., COUNTY RECORDER FEES: 34.00 PAGES: Recorder's Use BIORETENTION ENCROACHMENT MAINTENANCE AGREEMENT This BIORETENTION ENCROACHMENT MAINTENANCE AGREEMENT ( "Agreement ") is between CITY OF POWAY ( "City'), and TECH BUSINESS CENTER VENTURES, L.P., a California limited partnership( "Property Owner'). A. Property Owner is the fee title owner to that certain real property located in the City of Poway, County of San Diego, State of California, as more particularly described in Exhibit A attached hereto ( "Property "). B. The Property is encumbered by an easement for storm drain purposes that was dedicated in favor of City on Final Map 13944 (City of Poway Tract 86- 02r(2) Poway Corporate Center Units 2 And 3) ( "City Easement "). C. Property Owner has requested permission from City to construct, install, keep, maintain, repair, reconstruct a bioretention basin pursuant to the regulations, requirements, rules and laws promulgated by the Regional Water Quality Board and /or other governmental entities ( "Basin Encroachment ") over, under and across a portion of City Easement as depicted in Exhibit B attached hereto ( "Encroachment Areas "). City is willing to give Property Owner permission as set forth in this Agreement. Now, therefore, in consideration of their mutual promises, and other good and valuable consideration, the parties hereto agree as follows: 1. Grant of Permission. City grants Property Owner permission to construct, install, keep, maintain, repair, reconstruct the Basin Encroachment over, under and across the Encroachment Areas. 2. Agreements by Property Owner. (a) The Basin Encroachment shall be installed and maintained in a safe and sanitary condition at the sole cost, risk and responsibility of Property Owner and the successor owners of the Property. (b) With respect to any liability, including but not limited to claims asserted, demands, causes of action, costs, expenses, losses, attorney fees, damages, expenses or payments that City may sustain or incur in any manner for damages or injuries, including those to any person (including disability, dismemberment, illness damages, or death) or property, / `/ - O's, �), arising from, related to, or resulting from the construction, maintenance, state of use, repair, or presence of the Basin Encroachment, Property Owner agrees to defend, indemnify, protect and hold harmless City, its agents, officers, and employees from and against any and all liability. Also covered by this Paragraph 2(b) is liability arising from, related to, connected with, caused by, or claimed to be caused by the active or passive negligent acts or omissions of City, its agents, officers, or employees that may be in combination with active or passive negligent acts or omissions of Property Owner, its employees, agents or officers, or any third party. Property Owner's duty to defend, indemnify, protect and hold harmless shall not include any claims or liabilities arising from the sole or gross negligence or willful misconduct of City, its agents, officers or employees. Property Owner further agrees to pay any and all costs City incurs to enforce the indemnity and defense provision of this Paragraph 2(b). (c) To the extent City decides, at its sole discretion, to remove, repair, reconstruct, relocate, or otherwise alter the storm drain, Property Owner shall be responsible to take all measures necessary to ensure compliance with the regulations, requirements; rules and laws promulgated by the San Diego Regional Water Quality Board ( "Board ") throughout the construction process. Should the installation or reconstruction of the storm drain physically alter the bioretention basin within the Basin Encroachment, Property Owner shall immediately restore, reconfigure, and /or reconstruct the bioretention basin so that it complies with the regulations, requirements, rules and laws promulgated by the Board ( "Restoration Work'). The Parties intend by this Paragraph 3(c) to require Property Owner to restore the bioretention basin following any physical alteration by the City thereof so that City avoids any fines or penalties that the Board could otherwise issue against City in connection with such physical alteration of the bioretention basin. If, within fourteen (14) calendar days of written notice from City, within 24 hours of a forecasted rain event, or in the case of an emergency, whichever applies as determined by City, Property Owners fails to adequately complete the Restoration Work, City may cause the Restoration Work to be done, and the costs thereof shall be a lien against the Property. (d) Whatever rights and obligations were acquired by City with respect to the City Easement shall remain and continue in full force and effect and shall in no way be affected by City's grant of permission in Paragraph 1 above. 3. Covenants Running with the Land. This Agreement shall run with the Property, and shall both benefit and bind the successive owners of the Property during such owners' respective periods of ownership of the Property. Upon transfer of the Property, Property Owner shall be relieved of liability hereunder for actions occurring after the transfer. 4. Miscellaneous. This Agreement contains the entire agreement between City and Property Owner concerning the matters covered by this Agreement, and supersedes any and all prior agreements between City and Property Owner about such matters. This Agreement may be signed in multiple counterparts, each of which shall be an original, and all of which, when taken together, shall constitute one and the same agreement. G14 -0010 Bioretention Encroachment Maintenance Agreement Page 2 Property Owner: City: Approved As To Form Office of the City Attorney Morg t. F le kCity ttorney TECH BUSINESS CENTER VENTURES, L.P., a California Limited Partnership By: TT One, Inc., a California Corporation, General Partner By Theodore Tchang, President CITY OF POWAY By ert J. Ma is Director, Development Ser es Department G14 -0010 Bioretention Encroachment Maintenance Agreement Page 3 STATE OF CALIFORNIA ) SRN [)S$b0 ) ss. COUNTY OF ) On 0(jobgr- t`4I zO1`4 before me, OanL� C- Lane, 000 m4y Pkbl«. (hen; insert name and title of the officer), personally appeared Theodore- le- c--,f e who proved to me on the basis of satisfactory evidence to be the personal whose name(Y) Wa>g subscribed to the within instrument and acknowledged to me that he /sheUhey executed the same in his /WW /Uteir authorized capacity( 0s), and that by his /bev /04ee signature($) 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 under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature �1 F�:NCY C. LANE MMp 1942509 O PUBIIC • CALIFORNIA SAN DIEGO COUNTY %M JULY 26 , 2015 (Seal) G14 -0010 Bioretention Encroachment Maintenance Agreement Page 4 State of California County of /� �/,6-40 On 3 before me, ,oHyzz1s/C- Dale I \ I Here Insert Name and Title of Me 010car personally appeared PHYLLIS SHINN Commission Al 1956215 Notary Public - California zz San Diego County s C omm. Ex ires Nov 9, 2015 WhIly r Place Notary Seal Above 1�s who proved to me on the basis of satisfactory evidence to be the personN whose name(% is/a)"ubscribed to the within instrument and acknowledged to me that he /s)(e/th* executed the same in hi"/t*r authorized capacity(iW, and that by hiM1V0t1 r signature(f'on the instrument the person* or the entity upon behalf of which the personpQ 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. WITNESS my hand official seal. Signature Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Title or Type of Document: r,)/e/he67/�/v/ / t/'// v LfvC -1y vXL //Wy/ciy/ / �I11 /N /G�fJN' G / tjKG Document Date: �C%iiBe -n /7. OW14 � Number of Pages: Signer(s) Other Than Named Above: %7maee /�-- Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual ❑ Corporate Officer—Title(s): ❑ Partner — ❑ Limited ❑ General _ El Attorney in Fact 1:1 Trustee Top of thumb here ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited O General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHT THI1hIBPRINT OF 9GNER 02007 National Ndary ASSociabw- 9350 De Solo Aee., P.O.acx 2#02- Chatw,OM, CA 91313.2de -..N bfi NO ry.org Item #5907 Reorder Cell bII -Fina 1A00-876-M7 EXHIBIT "A" LEGAL DESCRIPTION PARCEL A: LOT 8 OF CITY OF POWAY TRACT 86- 02R(2) POWAY CORPORATE CENTER UNITS 2 AND 3, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13944, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, MARCH 13, 2000. APN: 320 - 220 -08 -00 PARCEL B: PARCEL 2 OF PARCEL MAP NO. 19948, 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 14, 2006. APN: 320- 220 -23 -00 I p9 zrAw I HLQp 1.5' 31 III ° gil CND 'll II i L1 pingrEl FCL. 1 LINE DATA TABLE III I BEARING IDISTANCE L1 S60'31'38' R 25.00' L2 N8715'01 'W 145.05 L3 N84'45'41'E 71.93' L4 N7117'26'E 52.17' L5 N61'29'23'E 60.80' EXHIBIT "B" DEPICTION OF ENCROACHM 1"=100' AMP CK. RJS U f�04 T LOT 8 APN: 320 - 220 -08 ' UA BIORETENTION BASIN 4G3LaC�4 �s S4716'39'E1R � �\ BIORETENTION BASIN I 102'44'59')LM NO2'4458�E 324.39 SHEET 1 OF 1 CURVE DATA TABLE DELTA RADIUS LENGTH Cl 107'48'17' 90.50' 170.28' C2 46'54'16" 90.50' 74.09' C3 5746'39" 90.50' 91.26' C4 50'01'38' 74.50' 65.05' C5 03'07'22" 90.50' 4.93' W/ ED m �ggeg�o I PARCEL 2 APN: 320 - 220 -23 BIORETENTION BASINS i s b -mn Q2D �090A S.W. COR. LOT 8 S75'48'05'W 47.97' SPEAR & ASSOCIATES. INC. ASSOCIATES. INC. CIVIL ENGINEERING AND LAND SURVEYING 475 PRODUCTION STREET, SAN MARCOS, CA 92078 PHONE (760) 736 -2040 FAX (760) 736 -4866 N063'09 75'32 '55'W 4 'E . y > 105.77' 61.09' L8�ySti3ti 1 "W 1 i 25.83 .45'05'W i 63.62' r IN wa 62.67' EN5'28'36 ASEWENT LEGEND N48'07'20 °W 62.67' ❑A PUBLIC UTILITY EASEMENT PER MAP 13944. N56 47.44 °W 24.82' ❑B PUBLIC UTILITY EASEMENT PER P.M. 19948. © 20' DRAINAGE EASEMENT PER MAP 13944. SPEAR & ASSOCIATES. INC. ASSOCIATES. INC. CIVIL ENGINEERING AND LAND SURVEYING 475 PRODUCTION STREET, SAN MARCOS, CA 92078 PHONE (760) 736 -2040 FAX (760) 736 -4866