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Private Facilities Maintenance Agreement 2021-0501875RECORDING REQUESTED BY: First American Title Co., Homebuilder Services Division WHEN RECORDED MAIL DOCUMENT TO: City of Poway PO Box 789 Poway, CA 92074 City Clerk Property Address: vacant land, Poway, CA DOC# 2021-0501875 IIIIIIIIIIll1111I ill111111111111111111111111111111111111IIIIll Jul 13, 2021 04:59 PM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER FEES: $32.00 (SB2 Atkins: $0.00) PAGES: 7 Space Above This Line for Recorder's Use Only Private Facilities Maintenance Agreement File No.: NHSC-5859991 (DLDG) Title of Document () Recorded [concurrently] In connection with a transfer of real property subject to the imposition of Documentary Transfer Tax per GC 27388.1 (a) (2). () Recorded [concurrently] in connection with a transfer of real property that is residential dwelling to an owner - occupier per GC 27388.1 (a) (2). (x) Maximum fee of $225 has been reached per GC 27388.1 (a) (1). () Not related to real property GC 27388.1 (a) (1). ( ) Transfer of real property subject to the imposition of Documentary Transfer Tax - GC 27388.1 (a)(2) () Transfer of real property that is a residential dwelling to an owner -occupier - GC 27388.1 (a)(2) () Exempt from fee under GC 27388.1 due to being recorded in connection with a transaction that was subject to documentary transfer tax which was paid on document recorded as Document No. of Official Records () Exempt from fee under GC 27388.1 due to the maximum fees having been paid on document(s) recorded as Document No. of Official Records () Exempt from fee under GC 27388.1 due to it being recorded in connection with a transfer of real property that is a residential dwelling to an owner -occupier. The recorded document transferring the dwelling to the owner - occupier was recorded as document No. of Official Records. () Exempt from fee under GC 27388.1 for the following reasons: THIS PAGE ADDED TO PROVIDE EXEMPTION INFORMATION FOR THE BUILDING HOMES AND JOBS ACT FEE (SB-2; AFFORDABLE HOUSING FEE) ($3.00 Additional recording fee applies) • RECORDING REQUESTED BY: First American Title Co., Homebuilder Services Division WHEN RECORDED MAIL DOCUMENT TO: City of Poway PO Box 789 Poway, CA 92074 City Clerk Space Above This Line for Recorder's Use Only Property Address: vacant land, Poway, CA Private Facilities Maintenance Agreement Title of Document File No.: NHSC-5859991 (DLDG) ( ) Recorded [concurrently] in connection with a transfer of real property subject to the imposition of Documentary Transfer Tax per GC 27388.1 (a) (2). ( ) Recorded [concurrently] in connection with a transfer of real property that is residential dwelling to an owner - occupier per GC 27388.1 (a) (2). (x) Maximum fee of $225 has been reached per GC 27388.1 (a) (1). () Not related to real property GC 27388.1 (a) (1). ( ) Transfer of real property subject to the imposition of Documentary Transfer Tax - GC 27388.1 (a)(2) ( ) Transfer of real property that is a residential dwelling to an owner -occupier - GC 27388.1 (a)(2) () Exempt from fee under GC 27388.1 due to being recorded in connection with a transaction that was subject to documentary transfer tax which was paid on document recorded as Document No. of Official Records () Exempt from fee under GC 27388.1 due to the maximum fees having been paid on document(s) recorded as Document No. of Official Records ( ) Exempt from fee under GC 27388.1 due to it being recorded in connection with a transfer of real property that is a residential dwelling to an owner -occupier. The recorded document transferring the dwelling to the owner - occupier was recorded as document No. of Official Records. () Exempt from fee under GC 27388.1 for the following reasons: THIS PAGE ADDED TO PROVIDE EXEMPTION INFORMATION FOR THE BUILDING HOMES AND JOBS ACT FEE (SB-2; AFFORDABLE HOUSING FEE) ($3.00 Additional recording fee applies) Recording Requested By: First American Title Company Homebuilder Services Division RECORDING REQUESTED BY: CITY OF POWAY AND WHEN RECORDED MAIL TO: CITY CLERK CITY OF POWAY P 0 BOX 789 POWAY, CA 92074 (THIS SPACE FOR RECORDER'S USE) APN: Pending Final Map PRIVATE FACILITIES MAINTENANCE AGREEMENT THIS PRIVATE FACILITIES MAINTgNANCE AGREEMENT ("Agreement"), dated for reference purposes as the 22 day of dune , 20 21 , is entered into between POWAY COMMONS LLC, (hereinafter referred to as "OWNER"), and the CITY OF POWAY, a municipal corporation, (hereinafter referred to as "CITY"). WHEREAS, this Agreement is required by CITY as a condition of approval of Resolution No. 19- 16 for Tentative Tract Map 19-005, specifically to address Sections 6(F)(9), 6(J)(4), and 6(J)(5) of the conditions of approval, and Development Review 19-004; and WHEREAS, OWNER wishes to provide for the maintenance and repair of those certain PRIVATE FACILITIES described as: the private streets, curbs, gutters, sidewalks, walkways, drainage ditches, sediment basins, storm drain, sewer, fire water, domestic water, irrigation, landscaping, fencing, walls, and lighting, as depicted on the building, grading and landscape plans (B20-1020 G19-0011, G20-0007, LP20-023) hereinafter referred to as the "PRIVATE FACILITIES"); and WHEREAS, OWNER is the owner of certain real property located in the City of Poway, California, more particularly described as Lots 3 and 4 of Map No. 16445, in the County of San Diego, State of California, filed in the office of the County Recorder of San Diego County, April 21, 2021 (hereinafter referred to as the "PROPERTY"), which is being subdivided and developed by OWNER that will use and enjoy the benefit of such PRIVATE FACILITIES; and WHEREAS, it is the mutual desire of the parties hereto that the PRIVATE FACILITIES be maintained and repaired in a safe and usable condition; and WHEREAS, it is the mutual intention of the parties that this Agreement constitute a covenant running with the Property, binding upon each successive owner of the Property. NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS: 1. The property benefited by this Agreement is the Property. The present and successive OWNER of all or any portion of the Property is expressly bound hereby for the benefit of the Property. 2. The cost of maintaining the PRIVATE FACILITIES shall be borne by OWNER, or his or her heirs, assigns, and successors in interest. Notwithstanding the foregoing, OWNER may seek contributions or recompense from and by all other owners, heirs, assigns and successors in interest who may be obligated under similar Private Facilities Maintenance Agreements with the City of Poway relevant to this section of private roadway. 3. The repairs and maintenance to be performed under this Agreement by or on behalf of the OWNER shall be limited to the following: reasonable and normal road improvement maintenance work to adequately maintain the PRIVATE FACILITIES, and any related drainage facilities, to permit normal access, ingress and egress to and from the Property. Repairs and maintenance under this Agreement shall include, but are not limited to: repairing and resurfacing roadbeds, filling chuckholes, repairing cracks, curbs, gutters, curb stops, sidewalks, repairing and maintaining walls, fences, landscaping, lighting, drainage structures, drainage pipes, stormwater treatment devices, swales, storm water conveyance appurtenances, sewer lines (routine cleanings shall be performed), water lines, fire lines, fire hydrants and associated appurtenances, removing trash and debris, maintaining signs, markers, striping and lighting, if any, and such other work as is reasonably necessary or proper to repair and preserve the PRIVATE FACILITIES for normal access, ingress and egress purposes. 4. The obligation of OWNER as outlined herein shall commence when the PRIVATE FACILITIES have been completed and approved by the City. 5. In the event OWNER retains a contractor to perform any maintenance and obligation with respect to the PRIVATE FACILITIES, the OWNER shall require such contractor to maintain liability insurance to cover any liability arising as a result of its activities with regard to such maintenance activities. 6. OWNER shall defend and indemnify and hold harmless CITY, CITY's Engineer and their consultants and each of their officials, directors, officers, agents and employees ("City Parties") from and against all liability, claims, damages, losses, expenses, personal injury and other costs, including costs of defense and attorney's fees (collectively "Claims"), incurred by or payable to any other user of the PRIVATE FACILITIES, or to any other third parties arising out of or in any way related to the use, repair or maintenance of the PRIVATE FACILITIES, except to the extent such Claims arise from or relating to the gross negligence or willful misconduct of the City or the City Parties. Nothing in this Agreement, the specifications, or other contract documents or CITY's approval of the plans and specifications for or inspection of the work regarding the PRIVATE FACILITIES is intended to include a review, inspection, or acknowledgment of a responsibility for any such matter, and CITY, CITY's Engineer, and their consultants, and each of their officials, directors, officers, employees and agents, shall have absolutely no responsibility or liability therefore. 7. If, in the CITY's sole reasonable judgment, the PRIVATE FACILITIES is not being maintained to standards set forth in Paragraph 3 of this Agreement, the CITY may thereupon provide written notice to the OWNER to initiate repairs or construction within ninety (90) days. Upon failure to demonstrate good faith to make repairs or construction within ninety (90) days of receipt of such notice, the OWNER agrees that the CITY may make all needed repairs to the PRIVATE FACILITIES to meet the standards set forth in Paragraph 3 and to then assess the costs thereof to the OWNER. OWNER shall reimburse CITY for all reasonable costs incurred by the CITY in connection with such maintenance activities. If the OWNER does not so reimburse the CITY within thirty (30) days after the CITY's demand, then CITY may pursue all of its remedies at law or in equity. 8. If the CITY elects to make necessary repairs in accordance with Paragraph 7 above, said work shall be without warranty. Said repair shall be accepted "as is" by the OWNER and without any warranty of workmanship. 9. The foregoing covenants shall run with the land and shall be deemed to be for the benefit of the land of each and every person who shall at any time own all or any portion of the Property referred to herein. 10. It is understood and agreed that the covenants herein contained shall be binding on the heirs, executors, administrators, successors and assigns of the OWNER. 11. It is the purpose of the signatory hereto that this instrument be recorded to the end and intent that the obligations hereby created shall be and constitute a covenant running with the land, and any subsequent purchaser of all or any portion of the Property, by acceptance of delivery of a deed and/or conveyance, regardless of form, shall be deemed to have consented to and become bound by this Agreement. 12. This Agreement shall be governed by the laws of the State of California. 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. IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth hereinafter. OWNER: POWAY COMMONS LL a Delaware limited Halo' company By: G►"'As=r., anager CITY OF.; •WAY: o• -rt J. Manis Director of Development Services APPROVED AS TO FORM: Date: (Q1 ZZ/Zo L/ (signature must be notarized) Date: /4 I - / (signature must be notarized) APPROVED AS TO CONTENT: Office of the City Attorney Engineering Division Alan Fenstermacher City Attorney Roc o, P. City E -er of the land of each and every person who shall at any time own all or any portion of the Property referred to herein. 10. It is understood and agreed that the covenants herein contained shall be binding on the heirs, executors, administrators, successors and assigns of the OWNER. 11. It is the purpose of the signatory hereto that this instrument be recorded to the end and intent that the obligations hereby created shall be and constitute a covenant running with the land, and any subsequent purchaser of all or any portion of the Property, by acceptance of delivery of a deed and/or conveyance, regardless of form, shall be deemed to have consented to and become bound by this Agreement. 12. This Agreement shall be governed by the laws of the State of California. 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. IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth hereinafter. OWNER: POWAY COMMONS LLC a Delaware limited liability company By: Date: Guy Asaro, Manager (signature must be notarized) CITY OF POWAY: Robert J. Manis Director of Development Services Date: (signature must be notarized) APPROVED AS TO FORM: APPROVED AS TO CONTENT: Office gfJthe City Attorney Engineering Division Ala ?f Fenstermacher Melody Rocco, P.E. City Engineer City Attorney CALIFORNIA 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 So" D e C> On - luni — c ) X) } before me, ran-e�eck- ( oof Date Here Insert Name and Title of the Officer (� personally appeared Guy PS Q54 Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person whose name . - subscribed to the within instrument and acknowl- aged to me thatlal/ty executed the same in 141? /tVir authorized capacity(, and that b /tVeit signature(4 on the instrument the person f, or the entity upon behalf of which the personf,) acted, executed the instrument. 'c^� TROY FRIEDECK _ F Notary Public - California '"'_ San Diego County �-,» r' Commission Of2300421 My Comm. Expires Au/ 5, 2023 Place Notary Seal and/or Stamp 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 OPTIONAL ure of Notary Public Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended docume 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 — 0 Limited 0 -neral ❑ Individual , a Attorney in Fact ❑ Trustee 0 Guardian or Conservator ❑ Other: Signer is ' • •resenting: 2018 National Notary Association Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — 0 Limited 0 General ❑ Individual 0 Attorney in Fact ❑ Trustee 0 Guardian or Conservator ❑ Other: Signer is Representing: 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 July 8, 2021 Date personally appeared before me, Ana Alarcon Notary Public Here Insert Name and Title of the Officer 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. ac z ANA ALARCON COMM. #2333444 z Notary Public - California c San Diego County Comm. Ex•IresS-•.14 2024 Place Notary 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: Private Facilities Maintenance Agreement 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): El Partner — ❑ Limited ❑ General Cl 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