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Encroachment Removal Agreement No. 21-0007 2021-0483209RECORDING REQUESTED BY: CITY OF POWAY AND WHEN RECORDED MAIL TO: CITY CLERK CITY OF POWAY P 0 BOX 789 POWAY, CA 92074 DOC# 2021-0483209 1111111111111111 111 111111111111 11111 111 11111 11111 1111 111 111 Jul 06, 2021 10:53 AM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER FEES: $26.00 (SB2 Atkins: $0.00) PAGES: 5 (THIS SPACE FOR RECORDER'S USE) APN: 317-472-31 ENCROACHMENT REMOVAL AGREEMENT NO. 21-0007 The CITY OF POWAY (herein called CITY) does hereby give permission to MC POWAY 97 LLC, a Delaware limited liability company, owner(s) of Lot 5 of Map No. 16445, (herein called PERMITTEE(S)), to encroach within the City's drainage easement for the purposes of retaining walls, private storm drain, private sewer, private fire, and private water lines. The limits of said encroachment are as shown on the approved rough grading plans (G19- 0011), precise grading plans (G20-0007), and Map No. 16445 and are described as follows: 1. Retaining walls at the northwest and southwest boundary of Lot 5 crossing the drainage easement. 2. Private storm drain, private sewer, private fire and private water lines crossing and/or within the drainage easement within Private Drive B of Lot 5. 3. Private storm drain pipes and cleanouts, connecting Lots 2 and 5, within the Tarascan Drive and Poway Road right-of-way. Said permission is given subject to PERMITTEE, its heirs, successors or assigns, by accepting the same, agreeing to the following conditions: 1. The permission given herein by CITY shall at all times be subject to the right of CITY to operate and maintain, and from time to time to reconstruct, alter, and improve any existing works of the CITY on CITY's right-of-way or easement, without liability for damages to the facilities of PERMITTEE, its heirs, successors or assigns; 2. It is understood that said lands are not owned by CITY, that the permission contained herein relates only to the prior rights of CITY by virtue of its right-of-way or easement in said lands, and nothing contained herein shall be deemed a representation by CITY of the right to grant a right-of-way or easement over said lands or any other rights which are reserved to the owners or other persons; 3. The CITY will not be liable for any damage to the proposed construction on CITY's right-of-way or easement resulting from future operation of the CITY's facilities by CITY within the right-of-way or easement; 4. This permission is given for the direct benefit of PERMITTEE's land above described and the covenants herein contained shall run with said land, and shall be binding on the assigns and successors of PERMITTEE; Encroachment Agreement No. 21-0007 Page 2 5. Only those utilities or improvements described above are permitted along or across the right-of-way or easement. If other utilities or improvements are proposed, an additional encroachment removal agreement will be required; 6. PERMITTEE shall not unreasonably interfere with the facilities of CITY, or with access by CITY, during construction. PERMITTEE shall establish grades, which, in the opinion of the CITY, will provide easy access across the encroachment after completion; 7. All of CITY's facilities in the right-of-way or easement are to be fully protected in a manner satisfactory to CITY after construction; 8. PERMITTEE, its heirs, successors or assigns, will be responsible for any damage which may occur to CITY's facilities in the right-of-way or easement by reason of the construction, location, or maintenance of PERMITTEE's facilities, and for the cost or any relocation of the facilities installed within the right-of-way or easement by PERMITTEE, its heirs, successors or assigns, should such relocation become necessary by reason of the construction by CITY of additional facilities or appurtenances thereon; 9. CITY, its officers, employees, agents and directors shall not be answerable or accountable in any manner for any loss or damage that may occur to facilities belonging to the PERMITTEE, its heirs, successors or assigns, or any part thereof; for any loss or damage to any of the materials, equipment or other things used or employed in constructing the same; for injury to or death of any person, either workmen or the public, or for damage to property from any cause arising out of PERMITTEE's use of CITY's right-of-way or easement, or the construction and maintenance of facilities thereon. PERMITTEE, its heirs, successors or assigns, shall be solely responsible for all of the foregoing. PERMITTEE, its heirs, successors or assigns, shall hold harmless, indemnify, and defend CITY, its directors, officers, employees and agents, from all claims, suits or actions of every name, kind and description, including attorneys' fees, brought for, or on account of, injuries to or death of any person or damage to property resulting or alleged to have resulted from PERMITTEE's use, or use by its heirs, successors or assigns, of CITY's right- of-way or easement or the construction and maintenance of facilities thereon, except to the extent such claims, suits or actions of every name, kind and description, including attorneys' fees, arise from or are related to the gross negligence or willful misconduct of the CITY, its directors, officers, employees or agents; 10. CITY is to be without cost or expense of any kind in connection with this agreement; 11. The encroachment shall be installed and maintained in a safe and sanitary condition at the sole cost, risk and responsibility of the PERMITTEE and successors -in -interest; 12. The PERMITTEE, its heirs, successors or assigns, shall remove or relocate the encroachment, or a portion thereof, within thirty (30) calendar days of receipt of notification in writing by the City Engineer of the City of Poway. If PERMITTEE fails to remove or relocate the encroachment, or a portion thereof, or otherwise comply with the direction of the City Engineer of the City of Poway regarding the encroachment, then the City may cause such work to be done at PERMITTEE's sole cost and expense, and the cost thereof shall be a lien upon the land owned by the PERMITTEE, its heirs, successors or signs. The CITY's request to remove or relocate the encroachment or a portion thereof shall not be arbitrary or without reason; Encroachment Agreement No. 21-0007 Page 3 This agreement is granted pursuant to action taken by the CITY OF POWAY on the ,9 vim day of JVVtc ,2021• OWNER: MC POWAY 97 LLC, a Delaware limited liability company By: Meridian Communities, LLC, a Delaware limited liability company Its: Managing Member By: CITY OF POWAY: Me ody R City Engineer APPROVED AS TO FORM: Office of the City Attorney (signature must be notarized) Date: ( / / 2/ Date: (613 (Signatures must be notarized.) Alan Fenstermacher City Attorney CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189 L-�•L•f?.4�rarr)) r € • €9 - ):€scr3 .:rr Y'x ;€•,ke :34:.>E <s;::s sir zass.4 { 'a`v-::a Yr: ynt S.4fi:F.si,•.+.>3€ r?: ee e `.:F}fii3:cYrY:°,•3.r s€@:A'>n•E"st•.n FS.'rE- l:Es:a €•si'r rir'.'i4ii<•'+ %'si= 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 o% On -Tire- - , ZZ Date (� personally appeared IL4 ( Pcso. before me, } ;tie— 636rOcy Here Insert Name and Title of the Officer Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person.(4 whose name subscribed to the within instrument and acknowledged to me tha he ,{6/tVy executed the same i r/tl4ir authorized capacityO, and that by l j r/tt 4ir signaturejy+jon the instrument the person(s'J, or the entity upon behalf of which the person(s) acted, executed the instrument. TROY FRIEDECK �C. Notary Public - California San Diego County Commission N 230042E My Comm. Expires Aug 5, 2023 Place Notary Seal and/or Stamp Above 1 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 Si uati.we'of Notary Public 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 — 0 Limited 0 General ❑ 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 ❑ Individual 0 Attorney in Fact ❑ Trustee 0 Guardian or Conservator ❑ Other: Signer is Representing: fi'e slr«tyoel:n Ye? :reE rxO:Elen{ : `:a3iESEErr?ESZE cs3€st-. e a €•le* ?';aT.€ riESu EErrE€isSISEres ''F.t%FECO .YMESEff3: leVErs exPE f3F-=` : tY r.Ei3Z°re::fi EEE z Enf .c>*ffies:• ©2018 National Notary Association 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 June 9. 2021 before me, Yvonne Mannion, Notary Public Date Here Insert Name and Title of the Officer personally appeared Melody Rocco 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 # 2201766 My Comm. Expires !un 18, 2021 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 ✓U;i,af!_ �;'[ (7),.."1-6/0,'J 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: Encroachment Removal Agreement No. 21-0007 Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Cl Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact El Trustee El Guardian or Conservator El Other: Signer Is Representing: Signer's Name: ❑ Corporate Officer — Title(s): Cl Partner — El Limited El General El 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