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Landscape Maintenance Agreement Aria Estate 2019-0451742
RECORDING REQUESTED BY: DOC# 2019-0451742 CITY OF POWAY IIIIIII IIIIIIIII IIIIIIII IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII III Oct 09, 2019 03:05 PM OFFICIAL RECORDS WHEN RECORDED MAIL TO: Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER CITY CLERK CITY OF POWAY FEES: $35.00 (SB2 Atkins: $0.00) P 0 BOX 789 PAGES: 8 POWAY, CA 92074 SPACE ABOVE THIS LINE FOR RECORDER'S USE APN: 317-534-20-00 LANDSCAPE MAINTENANCE AGREEMENT ARIA ESTATE This LANDSCAPE MAINTENANCE AGREEMENT ("Agreement") for the maintenance of certain landscaping ("Landscaping") along a section of the public right of way known as Pomerado Road, is entered into between Navak, LLC, a California limited liability company ("OWNER") and the City of Poway ("CITY"). The section subject to this agreement is depicted in Exhibit A. WHEREAS, OWNER is the owner of certain real property located in the City of Poway, California, more particularly described in Exhibit "B" hereto ("PROPERTY"). The PROPERTY is being developed into a planned development project as defined by California Civil Code Section 4175, pursuant Resolution No. P-18-24 of the City Council of the City of Poway approving Tentative Tract Map 17-003 and Development Review 18-003. The project will consist of seven (7) individual residential lots and two (2) common area lots as shown in the Tentative Tract Map. WHEREAS, OWNER has submitted to the CITY landscape plans ("LP 19-006") which includes the Landscaping to be maintained along Pomerado Road pursuant to this Landscape Maintenance Agreement. WHEREAS, OWNER's representations that the Landscaping will be maintained by the home owners association ("ASSOCIATION") formed to manage the residential project approved by the City, have been relied upon by CITY in approving OWNER's development applications. It is the purpose of this Agreement to assure that the Landscaping is maintained, by creating obligations that are enforceable against the ASSOCIATION. It is intended that these obligations be enforceable by the CITY. 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. Landscaping Maintenance Agreement. The ASSOCIATION, as the successor in interest to the Owner, shall comply in all respects with the requirements of the approved LP19-006 plans and in particular agrees to perform, at its sole cost, expense and liability, the following "MAINTENANCE ACTIVITIES": all necessary inspections, cleaning, repairs, servicing, maintenance, replacement of plants, and other actions with respect to all of the Landscaping along Pomerado Road, without request or demand from CITY or any other agency. 2. 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, the ASSOCIATION 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 itself, 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 the ASSOCIATION 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 ASSOCIATION and said work shall be without warranty or representation by CITY as to safety or effectiveness, shall be deemed to be accepted by the ASSOCIATION "as is", and shall be covered by ASSOCIATION'S indemnity provisions below. If CITY performs any of the MAINTENANCE ACTIVITIES, after CITY has demanded that ASSOCIATION perform the MAINTENANCE ACTIVITIES and the ASSOCIATION has failed to do so within a reasonable time stated in the CITY's demand, then the ASSOCIATION shall pay all of CITY's costs incurred in performing the MAINTENANCE ACTIVITIES, plus an administrative fee. The ASSOCIATION'S obligation to pay CITY's costs of performing MAINTENANCE ACTIVITIES is a continuing obligation. If the ASSOCIATION 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. 3. Administration of Agreement for CITY. CITY hereby designates the City Engineer or its agent 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 4. Defense and Indemnity. CITY shall not be liable for, and ASSOCIATION 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 and arising either directly or indirectly from any act, error, omission or negligence of ASSOCIATION, its 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. ASSOCIATION 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 Page 2 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. 5. Allocation of Costs. 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. 6. 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. 7. 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 LANDSCAPING 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 disturbancework. 8. 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 the ASSOCIATION. This Agreement may be terminated, and the parties may be 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 LANDSCAPING or that it is no longer necessary to assure such maintenance. This Agreement will be terminated if the OWNER or the ASSOCIATION, obtains a permit from the CITY to build a wall along the westerly PROPERTY line on Pomerado Road and southerly PROPERTY line to prevent intruders and burglars or homeless people to live on the PROPERTY in order to create maximum security for the OWNERS and the ASSOCIATION. 9. 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 and the Page 3 ASSOCIATION 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. 10. 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 Navak, LLC, a California limited liability company e,h P Date: 2-L( ,2019 � By: Mostafa Panah Title: Managing Member CITY OF POWAY: i A / I o ,/_../..I Date: S / i ,2019 :y. Robert J. Manis Director of Development S ices APPROVED AS TO FORM: APPROVED,AS TO CONTENT: Office of the City Attorney Engineering Division AA_ q e ..„.....00- /....A. -.-"------ Alan Fenstermacher, City Attorney Thomas R. Frank, P.E. City Engineer Page 4 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 r ,( ^, .,e.e-•,-,,, yr,e, l?:1'— •e-,,t c:<,-- ,-- C-'cwt l c Ctc r f..r:<` , <>c t> o r (: CALIFORNIA ALL-PURPOSE ACKNOWLE>GMENT CIVIL CODE§ 1189 ,-`!'IN, fket,C;4%..-w. :4i•_vi<..Q v.:--:� .,4.-"iii,.-•i.,a.t.s.: 11 Q.•"_w a� ,:ii.":ck• o.wx_v.,i. ,:i ,_v.1M. •.7,:a� \.-',,C:i" efx 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�n_PL;embew' 2.4-1 ici before me, Yvonne Mannion Notary Public , Date Here Insert Name and Title of the Officer personally appeared f� C •� �1+S ' 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 p is true and correct. ,,.,..,-<,iii.. YVONNE MANNION WITNESS my hand and official seal. Notary Public-California z z San Diego County n Commission#2201766 a � ` Signature 9.,it) nom- i t) '^n'� My Comm.Expires Jun 18,2021 9 , 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:k &Ot.C pe. (ln eit'ten ate e A j ieemen t Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Corporate Officer — Title(s): ❑Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General El 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: LiY •`=V �V. 'V JV �N�`.-'V�JJ "iV`�lV•- WV kvN, •- -- zV`W�1V =V„"'V=N - -- _.. ._'sz ©2016 National Notary Association •www.NationalNotary.org • 1-800-US NOTARY(1-800-876-6827) Item#5907 EXHIBIT "A" LANDSCAPE MAINTENANCE AGREEMENT ARIA ESTATE SUBDIVISION 0 ix IP 0 in SO* ()SCHALER DR ,r 40 0 ik 0. ®TOBIASSON RD g . ��/© O3 RIDGEDALE DR .�, � yQ` 4 SITE _ ENASQ OS LOS • CREW CO°14 VICINITY MAP NOT TO SCALE ROBISON BLVD SCHALER DR r • 62 6 ' 60 57 56 55 54 MAP 6614 �- o.msm..m. nm.....nm..mu ..mnm..m m.om..®. 5z 1 ; 51 C i LOT 7 ' `i-_ Z LOT B SO O 0 i OPEN SPACE ia �- EASEMENT - 49 cl a ! LOT 6 T-Q 0 W j 48 z W GENERAL LOCATION LOT 5 j OF LANDSCAPE i 46 47 a � LOT 4 AREA SUBJECT TO i THIS AGREEMENT [DANESRD �.�� LOT A 1 H I- co j � . 45 44 r 1 , um..m..m..m.._..m..m..m.. OJ OJ 9, i ' T -- . SE 1/4 SW 1/4 SEC 1-4 T14S R2W SBM KEYMAP SCALE: 1" = 200' us KBPS ENGINEERING, INC. 1801 VI Cit&Court,Ste.100 Soo r iii CA 92108 (619)296-5565 EXHIBIT LEGAL DESCRIPTION The southerly 528.00 feet of the westerly 660.00 feet of the northeast quarter of the southwest quarter of Section 14, Township 14 South, Range 2 West, San Bernardino Meridian, in the County of San Diego, State of California, according to the Official Plat thereof. APN: 317-534-20-00