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Storm Water Facilities Maintenance Agreement 2022-0016903RECORDING REQUESTED BY: CITY OF POWAY AND WHEN RECORDED MAIL TO: CITY CLERK CITY OF POWAY P 0 BOX 789 POWAY, CA 92074 DOC# 2022-0016903 111111111111111111111111111111111111111111111111111111111 Jan 12, 2022 11:21 AM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER FEES: $0.00 (SB2 Atkins: $0.00) PAGES: 12 (THIS SPACE FOR RECORDER'S USE) APNs: 323-280-13 & 323-280-28 STORM WATER FACILITIES MAINTENANCE AGREEMENT Lara Family Residence G18-0011 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 Facilities is entered into between the Property Owner(s) Francis Van Aeken and Astrid Mussi, husband and wife as joint tenants, (hereinafter referred to collectively as "OWNER A"), Property Owner(s) Lara Family Trust dated June 1, 2006, (hereafter referred to collectively as "OWNER B"), and the City of Poway (hereinafter referred to as "CITY") for the benefit of the CITY, OWNER A, OWNER B, the successors in interest to the CITY or the OWNER, and the public generally. WHEREAS, OWNER A is the owner of certain real property located in the City of Poway, California, more particularly described as Parcel 1 of Parcel Map 5493, in the County of San Diego, State of California, filed in the office of the County Recorder of San Diego County, August 29, 1975 (hereinafter referred to as the "PROPERTY A") and OWNER B 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 B"), which is being developed into a single family residence, in accordance with applications for a Development Review MDRA17-022 and Grading Permit Number G18-0011, which are on file with the CITY. This Agreement is required as a condition of approval for such development. WHEREAS, in accordance with the City of Poway's Stormwater Management and Discharge Control Ordinance, Poway Municipal Code, Chapters 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 B has proposed that storm water runoff from the adjacent street onto PROPERTY A be managed by the use of the following Storm Water Facilities which are identified as "Best Management Practices" or "BMPs": One biofiltration basin located on PROPERTY A as shown on Exhibit "B". The precise location(s) and extent of the BMPs are indicated on the approved grading plans on file with CITY's Development Services Department as G18-0011. 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 and strategies, no impervious area may be added to the project site without prior approval from the City Engineer. Additional impervious area includes, but is not limited to, patio covers, hardscape improvements, and building additions. WHEREAS, OWNER B's representations that the BMPs will be maintained have been relied upon by CITY in approving OWNER B's development applications. It is the purpose of this Agreement to assure that the BMPs are maintained, by creating obligations that are enforceable against OWNER B's and the OWNER A'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 Facilities. OWNER B agrees, for itself and its successors in interest, to all or any portion of PROPERTY A, 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 B shall keep records of this maintenance and provide copies of such records and annual certification of maintenance as requested by CITY. OWNER B shall initiate, perform and complete all MAINTENANCE ACTIVITIES at the required time, without request or demand from CITY or any other agency. OWNER B 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 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 B further agrees that it shall, prior to transferring ownership of any land on which any of the above BMPs are located, or any lot or portion of the PROPERTY A 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. 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 B 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 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 SWFMA (G18-0011) Page 2 MAINTENANCE ACTIVITIES shall in no way relieve OWNER B 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 B and said work shall be without warranty or representation by CITY as to safety or effectiveness, shall be deemed to be accepted by OWNER B "as is", and shall be covered by OWNER B's indemnity provisions below. if CITY performs any of the MAINTENANCE ACTIVITIES, after CITY has demanded that OWNER B perform the same and OWNER B has failed to do so within a reasonable time stated in the CITY's demand, then OWNER B shall pay all of CITY's costs incurred in performing the MAINTENANCE ACTIVITIES, plus an administrative fee. OWNER B's obligation to pay CITY's costs of performing MAINTENANCE ACTIVITIES is a continuing obligation. If OWNER B fails to pay CITY's costs for performing MAINTENANCE ACTIVITIES, CITY may assess a lien on PROPERTY B or properties of the responsible parties pursuant to the procedures set forth in Poway Municipal Code Chapter 8.72. 5. Grant of Easement to CITY. OWNER A hereby grants to CITY a perpetual easement over, under and across all of the PROPERTY A, 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, at any time and upon reasonable notice to OWNER, to enter upon any part of said area as may be necessary or convenient for such purposes. OWNER A shall at all times maintain the PROPERTY A so as to make CITY's access clear and unobstructed. 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 A and OWNER B and their 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 A and OWNER B's alleged noncompliance with the Stormwater Ordinance), and arising either directly or indirectly from any act, error, omission or negligence of OWNER A and OWNER B, OWNER A and OWNER B'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 A and OWNER B 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 CITY PARTIES shall have absolutely no responsibility or liability therefore unless otherwise provided by applicable law. 8. Allocation of Costs. Following the sale or transfer of any individual residential lots by OWNER B, the cost of the MAINTENANCE ACTIVITIES required by this Agreement shall be divided SWFMA (G18-0011) Page 3 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. 9. Agreement Binds Successors and Runs With PROPERTY A and PROPERTY B. 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 A, OWNER B, and CITY, shall be deemed to be for the benefit of all persons owning any interest in the PROPERTY A and PROPERTY B (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 PROPERTY A or PROPERTY B, who shall be deemed to have consented to and become bound by all the provisions hereof. 10. OWNER B'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 B of or otherwise affect OWNER B'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 OWNER B 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 OWNERS or OWNERS' successor(s) in interest. This Agreement may be terminated and OWNERS and PROPERTIES 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 A and OWNER B hereby waive 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. OWNER A: Francis Van Aeken and Astrid Mussi, husband and wife as joint tenants APN: 323-280-28 By: l�' vi)001 _. e Francis Van Aeken, Owner SWFMA (G18-0011) Date: Page 4 By: c i� L ` Date: Astrid M s wnerC__. (signatures must be notarized) OWNER B: Lara Family Trust dated June 1, 2006 APN: 323-280-13 By: irso Sara, Trustee By: Brenda Lara!Tru fee CITY OF POWAY: Robej J. Manis Director of Development Service APPROVED AS TO FORM: Office q# the City Attorney, Alan Fenstermacher, City Attorney Date: (?b Date: ) (signatures must be notarized) Date: (signature must be notarized) Attachments 1. Certificate of Acceptance 2. Exhibit A — Legal Description of Property B 3. Exhibit B — Location of BMPs 4. Exhibit C — Operation and Maintenance Plan APPROVED AS TO CONTENT: Engineering Division Melddy Ro City Engineer P.E. SWFMA (G18-0011) Page 5 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 December 16, 2021 Date before me, Yvonne Mannion, Notary Public Here Insert Name and Title of the Officer personally appeared Francis Van Aeken and Astrid Mussi 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. w.w .®. a a s a a .a. w YVONNE MANNION Notary Public - California San Diego County Commission # 2363699 My Comm. Expires Jul 1, 2025 Place Notary Seal Above WITNESS my hand and official seal. Signature i OPTIONAL 1 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: Storm Water Facilities Maintenance Agreement G18-0011 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 0 General 0 Individual ❑ Attorney in Fact 0 Trustee 0 Guardian or Conservator ❑ Other: Signer Is Representing: ©2016 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 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 December 7, 2021 Date before me, Yvonne Mannion, Notary Public Here Insert Name and Title of the Officer personally appeared Tirso Lara and Brenda Lara 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. YVONNE MANNION Notary Public - California San Diego County Commission # 2363699 My Comm. Expires Jul 1, 2025 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 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: Storm Water Facilities maintenance Agreement G18-0011 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 0 Individual ❑ Attorney in Fact 0 Trustee 0 Guardian or Conservator 0 Other: Signer Is Representing: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — 0 Limited ❑ General ❑ Individual 0 Attorney in Fact El 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 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 January 6, 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. YVONNE MANNION Notary Public - California San Diego County Commission b 2363699 My Comm. Expires Jul 1, 2025 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 n.,g.a.- /46-a;.�. Signature of Notary 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 Facilities Maintenance Agreement G18-0011 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 D General 0 Individual 0 Attorney in Fact ❑ Trustee 0 Guardian or Conservator ❑ Other: Signer Is Representing: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — 0 Limited 0 General 0 Individual 0 Attorney in Fact D 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 CERTIFICATE OF ACCEPTANCE (Storm Water 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 ja //k , I , from Francis Van Aeken and Astrid Mussi, husband and wife as joint tenants, 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: /4a1( CITY OF POWAY Seal: Bv: Rdbert J. Minis Department of Developmt Services SWFMA (G 18-0011) EXHIBIT A LEGAL DESCRIPTION OF OWNER(S) PROPERTY THE SOUTH TWO ACRES OF THE EAST HALF OF THE EAST HALF OF THE SOUTH EAST CORNER OF THE SOUTH WEST CORNER OF SECTION 18, TOWNSHIP 14S, RANGE 1W SAN BERNARDINO MERIDIAN IN THE COUNTY OF SAN DIEGO SATE OF CALIFORNIA ACCORDING TO THE UNITED STATES GOVERNMENT SURVEY. A.P.N. NUMBER: 323-280-13-00 1 EXHIBIT B A.P.N. NUMBER: 323-280-28-00 .•aa•• . ........vv. ............... .o❖.❖.❖.❖.❖.❖.• PROPERTY A PROPERTY BOUNDARY PAVEMENT AREAS DRAINING TO INTEGRATED MANAGEMENT PRACTICE (BIO-FILTRATION) EXISTING IRREVOCABLE OFFER OF DEDICATION OF REAL PROPERTY FOR ROADWAY PURPOSES GRANTED TO THE COUNTY OF SAN DIEGO PER DOC NO. 75-075120 DATED 4-2-1975 IN BOOK 197 OF O.R. 1 BIO-FILTRATION BASIN BMP5 SCALE: 1" = 60' 60 30 60 EXHIBIT C Biofiltration Basins One (1) proposed biofiltration basin has been identified in the SWQMP and on the Plans as a BMP5 for the specific treatment of pavement storm runoff. The biofiltration basin shall be constructed, operated, and maintained under the following guidelines: 1. The biofiltration basin shall be graded and constructed to the size and grades shown on the approved Plans. The grading shall be done in accordance with the grading specifications for the project. 2. The biofiltration area shall not be re -graded in the future, nor shall earth or other materials be brought into the biofiltration area, which could significantly alter the grades, drainage pattern, and/or water storage capacity of the basin. 3. The rock (gravel drainage layer) shall meet the specifications per the approved Plan, and should be dumped and spread evenly to the specified depth without compaction. 4. The soil media shall meet the specifications per the approved Plan, and shall be dumped and spread to the specified layer depth without being excessively compacted. 5. The biofiltration basin shall be planted with grasses, shrubs, and/or trees that can withstand short periods of saturation (ie, 12 to 72 hours) as well as long periods of drought. Temporary irrigation may be required during the plant establishment period. 6. Landscaping within the biofiltration basins shall be inspected on a semi-annual basis at minimum, for the health and stability of vegetation. Dead or unhealthy vegetation should be replaced on a regular basis after each inspection. 7. The biofiltration basin shall be regularly maintained to avoid buildup of excessive leaves, dead vegetation, or other trash or debris that could hinder or alter the effectiveness of the basin. The inlet and outlet areas of the basin should be kept clear of any buildup of excess leaves, vegetation or debris which could impair flows in and out of the basin. 8. The biofiltration basin should be visually inspected after each rain event producing a half- inch of rain or more, for any signs of erosion or unusual accumulation of sediment or debris. Any required repairs should be completed prior to the next such storm event if possible. 9. The biofiltration basin should be observed periodically (at least once per year) during a moderate rain event to observe for general infiltration of runoff into the soil system. Responsible Party The owner of the property under APN 323-280-13-00 shall be the responsible party for implementation of the installation, operation, and maintenance requirements for the described onsite permanent BMP landscape and biofiltration improvements. All costs associated with the installation, operation and maintenance of the permanent BMP's shall be borne by the owner of the property. These requirements as responsible party shall transfer to the new ownership in the event of sale of the property in the future. Record Keeping The owner of the property, or an assigned representative, shall keep records of the installation, operation, and maintenance of the permanent BMP's as described above, including inspection records. These records shall be maintained for a minimum of five years, and shall be made available to the City, the State Water Resources Control Board, or any other authority regulating storm water discharge, for their inspection upon request at any time during this period. SHEET 1 OF 1