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Landscape Maintenance Agreement 2021-0501876Rf!CORDING 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 DOC# 2021-0501876 111111111111 lllll 1111111111111111111111111 lllll lllll 111111111111111111 Jul 13, 2021 04:59 PM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER FEES: $74.00 (SB2 Atkins: $0.00) PAGES: 21 ------------------L ____ .Space Above This Line for Recorder's Use Only _____ _ File No.: NHSC-5859991 (DLDG) Property Address: vacant land, Poway, CA Landscape Maintenance Agreement. Poway Commons 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 _____ _ File No.: NHSC-5859991 (DLDG) Property Address: vacant land, Poway, CA Landscape Maintenance Agreement. Poway Commons 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: CITY OF POWAY Recording R'equested By: First American Title Company Homebuilder Services Division WHEN RECORDED MAIL TO: CITY CLERK CITY OF POWAY PO BOX 789 POWAY, CA 92074 APN: Pending Final Map SPACE ABOVE THIS LINE FOR RECORDER'S USE LANDSCAPE MAINTENANCE AGREEMENT POWAY COMMONS This LANDSCAPE MAINTENANCE AGREEMENT ("Agreement") for the maintenance of certain landscaping ("Landscaping") along sections of the public right of way known as Poway Road, Civic Center Drive and Tarascan Drive, is entered into between MC POWAY 97 LLC, a Delaware limited liability company ("MC Poway"), POWAY COMMONS, LLC, a Delaware limited liability company ("Poway Commons"), and POWAY COMMONS AFFORDABLE CIC, LP, a California limited partnership ("Affordable Owner"; together with MC Poway and Poway Commons, the "OWNERS" and each an "OWNER") and the City of Poway ("CITY"). The landscaped areas subject to this Agreement are depicted in Exhibit "A" attached hereto ("Landscaping Areas"). WHEREAS, MC Poway is the owner of certain real property located in the City of Poway, California, more particularly described in Exhibit "B" hereto ("MC Poway Property"), Poway Commons is the owner of certain real property located in the City of Poway, California, more particularly described in Exhibit "C" hereto ("Poway Commons Property"), and Affordable Owner is the owner of certain real property located in the City of Poway, California, more particularly described in Exhibit "D" hereto ("Affordable Owner Property; together with the MC Poway Property and the Poway Commons Property, the "PROPERTIES" and each as "PROPERTY"). The PROPERTIES are being developed into a planned development project as defined by California Civil Code Section 4175, pursuant Resolution No. P-19-16 of the City Council of the City of Poway approving Tentative Tract Map 19-005 and Development Review 19-004. The project will consist of three (3) individual residential lots, two (2) commercial lots, and seven (7) common area lots as shown on the Tentative Tract Map. WHEREAS, MC Poway has submitted to the CITY landscape plans ("LP 20-015") which include the Landscaping to be maintained within the Landscaping Areas along Poway Road, Civic Center Drive, and Tarascan Drive pursuant to this Landscape Maintenance Agreement. WHEREAS, the Landscaping will be maintained by the OWNERS. It is the purpose of this Agreement to assure that the Landscaping is maintained, by creating obligations that are enforceable against the OWNERS. It is intended that these obligations be enforceable by the CITY and the OWNERS. 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. 10179008.1 1.1 Maintenance. The OWNERS shall comply in all respects with the requirements of the approved LP20-015 plans and in particular agree to perform (or cause to be performed), at their 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 within the Landscaping Areas along Poway Road, Civic Center Drive, and Tarascan Drive without request or demand from CITY or any other agency. OWNERS shall have no responsibility or liability for any MAINTENANCE ACTIVITIES as to any landscaping except for the Landscaping located within the Landscaping Areas. 1.2 Responsible Owner. As among the OWNERS (and successor owner(s) of all or any part of the PROPERTIES), Poway Commons (and any successor owner(s) of the Poway Commons Property, each a "Responsible Owner") shall be responsible for performing all MAINTENANCE ACTIVITIES. If there is more than one owner of the Poway Commons Property, then each such owner shall be a Responsible Owner, and the share of the costs and expenses of all MAINTENANCE ACTIVITIES shall be split between all such Responsible Owners as they shall agree in writing. As among the OWNERS, the determination of the requirement for, or manner of performing, any MAINTENANCE ACTIVITIES shall be at the sole and absolute discretion of the Responsible Owner(s). Nothing herein shall limit CITY's rights under this Agreement as to all OWNERS. 1.3 Maintenance Budget; Maintenance Costs. The current projected annual projected budget ("Maintenance Budget") for the MAINTENANCE ACTIVITIES is set forth in Exhibit "E" attached hereto. The Responsible Owner(s) may develop a new Maintenance Budget ("Updated Maintenance Budget") for MAINTENANCE ACTIVITIES from time to time, and shall provide the other OWNERS with any such Updated Maintenance Budget. Poway Commons shall be responsible for fifty percent (50%), MC Poway shall be responsible for thirty-four and one-half percent (34.5%), and Affordable Owner shall be responsible for fifteen and one-half percent (15.5%) of the aggregate costs of any such Maintenance Work rMaintenance Costs"). 1.4 Payment. MC Poway and Affordable Owner (each, a "Reimbursing Owner") shall each remit quarterly payments to the Responsible Owner(s) for its respective share of the estimated annual Maintenance Costs based on the most recently prepared Maintenance Budget or Updated Maintenance Budget, as applicable. Each such payment shall be due and payable within thirty (30) days after the Reimbursing Owner's receipt of invoices therefor. Responsible Owner(s) shall, within ninety (90) days after the end of each calendar year, deliver to each Reimbursing Owner a statement in reasonable detail showing such Reimbursing Owner's share of the actual Maintenance Costs incurred during the preceding year. If the Reimbursing Owner's payments pursuant to this Section 1.4 during the preceding year exceed such Reimbursing Owner's share as indicated on such statement, the Responsible Owner(s) shall credit the amount of such over-payment against the Reimbursing Owner's share of Maintenance Costs next becoming due. If the Reimbursing Owner's payments pursuant to this Section 1.4 during the preceding year were less than the Reimbursing Owner's share as indicated on such statement, the Reimbursing Owner shall pay to the Responsible Owner(s) the amount of the deficiency within ten (10) days after the Reimbursing Owner's receipt of such statement. If requested by a Reimbursing Owner, Responsible Owner(s) will deliver to such Reimbursing Owner, within thirty (30) days Page2 10232151.1 after written request, a reasonably detailed report and copies of invoices of reflecting the actual Maintenance Costs for the preceding calendar year. 1.5 Insurance. The Responsible Owner(s) shall procure and maintain (or cause to be procured and maintained) in full force and effect throughout the term of this Agreement commercial general liability insurance against claims for personal injury, death or property damage with combined single limits of at least One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) general aggregate. Such coverage may be obtained under the general liability insurance policy maintained by the Responsible Owner(s). The limits of coverage for the foregoing insurance are subject to increase from time to time by mutual agreement of the OWNERS based upon the customary level of insurance then being maintained for similar projects. In no event shall the limits of any coverage maintained pursuant to this Agreement be considered as limiting liability under this Agreement. Notwithstanding the foregoing, the coverages and limits of such insurance shall comply in all respects with any insurance requirements of the CITY. Each other OWNER (following any transfer by MC Poway thereto of all or part of the MC Poway Property) the Homeowners Association (defined below) shall be named as additional insureds under the Responsible Owner(s) insurance policy(ies). 2. Right to Perform Maintenance. 2.1 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 OWNERS have failed to perform the same following CITY'S written demand if such failure continues for more than sixty (60) days after such demand, but if such failure cannot reasonably be cured within such sixty (60) day period, then such longer period as may be reasonably necessary to complete such cure so long as OWNERS commence such cure within such sixty (60) day period and thereafter proceed diligently to complete the cure. 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 OWNERS of their 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 OWNERS and said work shall be without warranty or representation by CITY as to safety or effectiveness, shall be deemed to be accepted by the OWNERS "as is", and shall be covered by OWNERS' indemnity provisions below. 10232151.1 If CITY performs any of the MAINTENANCE ACTIVITIES, after CITY has demanded that OWNERS perform the MAINTENANCE ACTIVITIES and the OWNERS have failed to do so within the time stated above in this Section, then the OWNERS shall pay all of CITY's costs incurred in performing the MAINTENANCE ACTIVITIES, plus an administrative fee in the amount charged by CITY to other property owners under similar circumstances. The OWNERS' obligation to pay CITY's costs of performing MAINTENANCE ACTIVITIES is a continuing obligation. If the OWNERS fail to pay CITY's costs for performing MAINTENANCE ACTIVITIES, CITY may assess a lien on Page 3 the property or properties of the responsible parties pursuant to the procedures set forth in Poway Municipal Code Chapter 8. 72. 2.2 OWNERS' Right to Perform Maintenance. Without limiting any of the CITY'S rights described in Section 2.1, if any Responsible Owner fails to perform any MAINTENANCE ACTIVITIES as required herein ("Defaulting Owner"), then any other OWNER (including any other non-defaulting Responsible Owner, if applicable) ("Non- Defaulting Owner") may notify the Defaulting Owner of such failure to perform, with such notice setting forth the MAINTENANCE ACTIVITIES that were not performed ("Default Notice"). If, following such Default Notice, the failure to maintain continues for thirty (30) days after delivery of the Default Notice (or, if such failure cannot reasonably be cured within such period, the Defaulting Owner fails to commence to cure within such thirty (30) day period, or thereafter fails to diligently proceed to complete the cure), then any Non-Defaulting Owner shall have the right, but not the obligation, to perform the MAINTENANCE ACTIVITIES described in the Default Notice. The Defaulting Owner shall reimburse each Non-Defaulting Owner for any costs incurred in connection with such MAINTENANCE ACTIVITIES within ten (10) days after delivery of receipts for expenses incurred in the performance of the MAINTENANCE ACTIVITIES described in such Default Notice. 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 Unless otherwise provided herein, all notices, demands or other communications given hereunder shall be in writing and shall be deemed to have been duly delivered upon personal delivery, or on the first (1st) business day after deposit with Federal Express or other overnight courier service, or as of the third (3rd) business day after mailing by United States registered or certified mail, return receipt requested, postage prepaid, or if given by email upon the earlier of (i) the date the recipient actually received and read the notice as evidenced by the recipient's (non•automatic) reply to such notice or other competent evidence of actual receipt, or (ii) the deemed given date of duplicate notice given by the sender by any mode of transmission allowed above other than email. Any notices to the OWNERS shall be addressed as follows: 10232151.1 If to Poway Commons: Poway Commons, LLC c/o Meridian Development, LLC 9988 Hibert Street, Suite 210 San Diego, California 92131 Attn: Guy Asaro E•mail: gasaro@meridiandevelopment.com Page4 If to MC Poway: MC Poway 97 LLC c/o Meridian Development, LLC 9988 Hibert Street, Suite 21 O San Diego, California 92131 Attn: Guy Asaro E-mail: gasaro@meridiandevelopment.com If to Affordable Owner: Poway Commons Affordable CIC, LP 6339 Paseo del Lago Carlsbad, California 92011 Attn: Cheri Hoffman E-mail: cherihoffman@chelseainvestco.com Any party hereto may change its address for notices by giving written notice thereof to all parties delivered in the manner set forth herein. · 4. Defense and Indemnity. 4.1 Indemnification of CITY. CITY shall not be liable for, and OWNERS 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 reasonable 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 the OWNERS, 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. OWNERS 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. 4.2 Indemnification of OWNERS. Without limiting any of CITY PARTIES' rights in Section 4.1 above, each OWNER shall indemnify, defend, protect and hold harmless each other OWNER from and against any and all CLAIMS, including without limitation, reasonable attorneys' fees and court costs, related to this Agreement and arising either directly or indirectly from (i) any negligence or willful misconduct of the indemnifying OWNER or its contractors, licensees, agents, servants or employees, or (ii) any breach by the indemnifying OWNER of the provisions of this Agreement, except to the extent any such CLAIM arises either Page 5 10232151.1 directly or indirectly from the negligence or willful misconduct of the indemnified OWNER or any of its contracts, licensees, agents, servants or employees. 5. Agreement Binds Successors and Runs With the PROPERTIES. 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 OWNERS and CITY, shall be deemed to be for the benefit of all persons owning any interest in the PROPERTIES (including the interest of CITY or its successors in any 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 PROPERTIES, who shall be deemed to have consented to and become bound by all the provisions hereof. MC Poway intends to convey title to portions of the MC Poway Property to a homeowners association for all or part of the MC Poway Property ("Homeowners Association"). Notwithstanding anything in this Agreement to the contrary, each OWNER, as applicable, shall be released from all obligations under this Agreement, as to all or any portion of such OWNER'S Property burdened and/or benefitted by this Agreement, on the date all or such portion of such Property is sold, conveyed or otherwise transferred by such OWNER to any third party (including any such transfer by MC Poway to any Homeowners Association). 6. OWNERS' Continuing Responsibilities Where Work Commenced or Permit Obtained. Notwithstanding any other provision of this Agreement, · no transfer or conveyance of the PROPERTIES or any portion thereof shall in any way relieve OWNERS of or otherwise affect OWNERS' 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, except as to MC Poway after completion of its development project on the MC Poway Property and the transfer of portions thereof to, and acceptance by, the Homeowners Association as provided in Section 5 above. 7. 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. 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, which may include the CITY'S establishment of a landscape Maintenance District, will assure the ongoing maintenance of the LANDSCAPING or that it is no longer necessary to assure sucti maintenance. 8. 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. OWNERS 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. 9. 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 Page 6 10232151.1 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. MC POWAY: MC POWAY 97 LLC, a Delaware limited liability company By: Meridian Communities, LLC, a Delaware limited I' bility company Its: Managin POWAY COMMONS: POWAY COMMONS, LLC, a Delaware limited liabi ·ty company AFFORDABLE OWNER: POWAY COMMONS AFFORDABLE CIC, LP, a California limited partnership Date: __ ,,__/.,_/-#-/ ___ , 2021 • I Date: __ 7......._,./__._1 +-/ ___ , 2021 J 1 By: Pacific Southwest Community Development Corporation, a California nonprofit public benefit corporation Its: Managing General Partner By: __________ _ Name: Robert Laing Its: President/Executive Director By: CIC Poway Commons Affordable, LLC, a California limited liability company Its: Admi ni ative General Partner By:--4..,.L-~=-1-~f--L-L.&,;;..;...., __ Nam Its: President 10232151.1 Date: ________ , 2021 Dated: -1'1J1!} 2, f) , 2021 Page7 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 __ S_e,,._~_o __ ,_e&--+--+------ On -1..:.ly l 1 202..\ before me-, ~~/(j_~---~-~~~~t'-d_'-~CT~~~~-:-a~~~~w __ Date Here Insert Name and Tiffeofthe Officer personally appeared ____ G.,=--=-,'!-+-_ _,Qs.oo'-----'-'~~~------------------- C) Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the personf,f whose name~~ subscribed to the within instrument and acknowledged to me tha~/t~y executed the same i~~ir authorized capacity(~). and that b~/t¥ir signature~ on the instrument the perso~ or the entity upon behalf of which the persol)£8racted, executed the instrument. ~--•=•==••===i • TROY FltlEDECK : Not1ry Public -C11iforni1 l j Sin Di•t<> County ~ Commission # 2300-421 My Comm. Expires AUi S, 2023 Place Notary Seal and/or Stamp Above I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. 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: ------------------7"'~---------- Document Date: ___________________ ~-- 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 □ Partner -□ Limited □ General □ Individual □ Individual □ Attorney in Fact □ Trustee □ Trustee □ Guardian or Conservator □ Other: □ Other: Signer is Representing: _________ _ ©2018 National Notary Association 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 Calif~ ~ } County of_.,,_~-----'--"-----~---;,..-=------ On ~ ~ ~-/ before me, #S.f:Arru,u4 A./a+-arit Pu...,,l'J/;e, Date /) / . '✓-? Insert Name and mteclithe Officer personally appeared ______ l'lJ __ .-e.r; __ , _ ___;_f/p _ _,~'--L.!c...L..,'----"~:,::_:__'O...L-_____________ _ Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(sf whose nameW is/a_,.e'subscribed to the within instrument and acknowledged to me that hj(/sbe/tlil€y executed the same in h%/her/tj)e'ff authorized capacity(i~, and that by h~/her/t~r signature(~ on the instrument the person~ or the entity upon behalf of which the person(~ acted, executed the instrument. ········1 M. ST.AAIOUR Notary Public -California : San DieiC) County ~ Commission I 23-449-44 y Comm. Expires Feb 3, 2025 Place Notary Seal and/or Stamp Above I certify under PENAL TY 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 -~..I£... ______________ _ Signature of Notary Public 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: ___________________________ _ 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 □ 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: _________ _ ©2019 National Notary Association 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. MC POWAY: MC POWAY 97 LLC, a Delaware limited liability company By: Meridian Communities, LLC, a Delaware limited liability company Its: Managing Member By: __________ _ Guy Asaro, Manager POWAY COMMONS: POWAY COMMONS, LLC, a Delaware limited liability company By: _________ _ Guy Asaro, Manager AFFORDABLE OWNER: POWAY COMMONS AFFORDABLE CIC, LP, a California limited partnership Date: ________ , 2021 Date:. ________ , 2021 By: Pacific Southwest Community Development Corporation, a California nonprofit public benefit corporation Its: Managing Ge I Partner By: __ ..:-1,-~....;....;c......:;.:;-1----- Name: Robert Laing Its: President/Executive Director By: CIC Poway Commons Affordable, LLC, a California limited liability company Its: Administrative General Partner By:. _________ _ Name: Cheri Hoffman Its: President 10232151,1 Date: tf: /L 7 / , 2021 Dated:. ________ , 2021 Page 7 California All-Purpose Acknowledgment 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 M A-y d ~ '>-0 ),.-I before me, Gregg Miller, Notary Public, personally appeared @-0 gk::;r------c L-~ I N 6--- ········~ GREGG MILLER Notary Public • California : San Dtevo County ~ Commission /123-45570 y Comm. Expires Feb 7, 2025 who proved to me on the basis of satisfactory evidence to be the person~ whose name£gJ .i.slar,e subscribed to the within instrument and acknowledged to me that heLshe/tl;l6y executed the same in ~rllfieir' authorized capacity(~). and that by l:!!§Loe;Jffieir signature~ on the instrument the person-(8-), or the entity upon behalf of which the person(.s, acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the state of California that the foregoing paragraph is true and correct. ________________ OPTIPNAL _____ ~-------- 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 reattachmen~ of this form to another document. Description of Attached Document Title or Type of Document: ~ N/J<: C ~ P\: Document Date: ____ ~'2 .... --_f_►_r_,_/_d_( ___ _ Number of Pages: _________ _ Signer(s) Other Than Named Above: ________________________ _ CapacityOes) Claimed by Signer(s) Signer's Name: _________ _ Individual = Corporate Officer -rrtle(s): ----- RIGHTTHW,lBPRINT OF SIGNER - Signer's Name:--~------- Individual = Corporate Officer -Tltle(s): ----,--- RIGHT THU~lBPRINT OF SIGNER Partner -Limited General = Attorney in Fact Trustee- Guardian or Conservator Other: __________ _ Signer is representing: _______ _ top of thumb here Partner -Limited General Top of thumb here -Attorney in Fact -Trustee Guardian or Conservator Other:~---------- Signer is representing: _______ _ By: is Date: 44 /Z ,2021 Director of Development Servic APPROVED AS TO FORM: APPROVED AS TO CONTENT: Office of the City Attorney Engineering Division Alan Fenstermacher, City Attorney r~ City Engineer Page8 10232151.1 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 13, 2021 before me, Ana Alarcon) Nc:r\--ct'{i f\)o\ ,~ Date Here Insert Name and Title of the Officer personally appeared ________ R_o_b_e_rt_J_. _M_a_n_i_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. • • ANA ALARCON • • ' Place Notary Seal Above I certify under PENAL TY 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 {t..a_ fl/IA.: {l_lAf('_f/f._ Signature of Notary Public ----------------OPTTONAL---------------- 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: ___________________________ _ 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 □ 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: ________ _ >N~~~~~~~~~ ©2016 National Notary Association• www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 CITY OF POWAY: By: Robert J. Manis Director of Development Services APPROVED AS TO FORM: Office of the City Attorney (llpv Alan Fenstermacher, City Attorney 10232151.1 Page 8 Date: ________ ,2021 APPROVED AS TO CONTENT: Engineering Division Melody Rocco, P.E. City Engineer EXHIBIT "A" SHEET 1 OF 1 DEPICTION OF LANDSCAPE MAINTENANCE AREAS I I I I I I I JYlAP 6 'J 35 MAP 5934 ,__J_ (J) 0 ex: .,____._ _____ I __J_ LOT MAP NO. 16445 1------411 LOT 2 ~ ~ ~ ~ (j) (rJ 0 ~ 0::: -----'----L---------1..-..L.-..--------t:====:::::s:? ~ -- LANDSCAPE MAINT.-AREAS POWAY ROAD LANDSCAPE -----_.____---,-_____._...,...,.'-TM~A~NT. AREAS .,---, .,......... LL1z (J)'o 1---, ~l) -.-, LL] ' (J) LOT 3 PCL 1 PM 8847 t-----------------L-----1 LLl -CL, MAP NO. 16445 LOT 5 ~1------------------"--,-<:::.., ---, ii HUNSAKER & ASSOCIATES SAN DIEGO, INC. 9707 Waples Street (858)558-4500 San Diego, CA 92121 R:\1558\&Mop\EX Poway Commons-EXHIBIT A Landscape Maint SHT 01,dwg W.O. JJ45-0008 PCL 1 PJYJ 9']05 NOT TO SCALE EXHIBIT "B" LEGAL DESCRIPTION OF MC POWAY PROPERTY LOTS 1 AND 5 OF CITY OF POWAY TTM 19-005, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 16445 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON APRIL 15, 2021. 10029752.2 4/20/21 B-1 EXHIBIT"C 11 LEGAL DESCRIPTION OF POWAY COMMONS PROPERTY LOTS 3 AND 4 OF CITY OF POWAY TTM 19-005, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 16445 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON APRIL 15, 2021. 100297S2.2 4/20/21 C-1 EXHIBIT "D" LEGAL DESCRIPTION OF AFFORDABLE PROPERTY LOT 2 OF CITY OF POWAY TTM 19-005, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 16445 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON APRIL 15, 2021. 10029752.2 4/20/21 D-1 ESTIMATED SITE TAKE-OFF I POWAY COMMONS (RO!} ITEMOESCRPTK>N UNIT Hardscape, Site Amer ties (ROW 1 Concrete Paving 5,421 sf Tree Grates 13 ea Trash Receotades 4 ea Bike Rack 2 ea SUblDlal Softscape :ROl,': Trees 24"Box Tree 19 ea 36"Box Tree 2 ea Shrum 1 Galoo 323 ea GnMlndcovar 1 Galon 146 ea 3" OeDlh Bert Mulch 1,420 sf ~ *Take-offs based on 21863-PCLandscapeSetPublic_20-07-28 I ™):!1-'-5,: .:'. J. ~O !I E-1 100 FIXED cons 200 OPERATING COSTS 300 RFSFB~ 400 ADMINISTRATION . . . . . 50!)00N'I1NGENCY · BUDGET SUMMARY 'Poway Commons•· R.O.W. Shared Cost Budget 100 ·SUBTOTAL 200 ·SUBTOTAL 300 ·SUBTOTAL 400 ·SUBTOTAL . ·. 10TAL (IOMOO)' Tot31 Monthly $12,50 $365.01 $168,37 $164.59 $710,47 500-SUBTOTAL $19.54 TOTAi.BUDGET ... $730.01 row~v oo~oijs co~CIAL OWNER · · ·. •SO.i>DK · .. · $365.oo PC>WAYd>MMONS HOA . :14:SC!" $isi.as .· AJIFORDABLI.APAR'rMENTS 15.5°" $11US ·• E-2 Toal Annual $150 $4,380 $2,020 $1,975 . $8,525 $234 ·· .. ··. sa:1s9 · >$4~ '.$~.022 ·. $1,358 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 DOC# 2021-0501876 111111111101111111111111111111111111111111111111111111111111111 Jul 13, 2021 04:59 PM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER FEES: $74.00 (SB2 Atkins: $0.00) PAGES: 21 Space Above This Line for Recorder's Use Only File No.: NHSC-5859991 (DLDG) Property Address: vacant land, Poway, CA Landscape Maintenance Agreement, Poway Commons 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 File No.: NHSC-5859991 (DLDG) Property Address: vacant land, Poway, CA Landscape Maintenance Agreement, Poway Commons 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: CITI cording Ftequ Hested By: First American Title Company Homebuilder Services Division WHEN RECORDED MAIL TO: CITY CLERK CITY OF POWAY P O BOX 789 POWAY, CA 92074 APN: Pending Final Map SPACE ABOVE THIS LINE FOR RECORDER'S USE r-N.k.: ISO \ `c\\ LANDSCAPE MAINTENANCE AGREEMENT POWAY COMMONS This LANDSCAPE MAINTENANCE AGREEMENT ("Agreement") for the maintenance of certain landscaping ("Landscaping") along sections of the public right of way known as Poway Road, Civic Center Drive and Tarascan Drive, is entered into between MC POWAY 97 LLC, a Delaware limited liability company ("MC Poway"), POWAY COMMONS, LLC, a Delaware limited liability company ("Poway Commons"), and POWAY COMMONS AFFORDABLE CIC, LP, a California limited partnership ("Affordable Owner"; together with MC Poway and Poway Commons, the "OWNERS" and each an "OWNER") and the City of Poway ("CITY"). The landscaped areas subject to this Agreement are depicted in Exhibit "A" attached hereto ("Landscaping Areas"). WHEREAS, MC Poway is the owner of certain real property located in the City of Poway, California, more particularly described in Exhibit "B" hereto ("MC Poway Property"), Poway Commons is the owner of certain real property located in the City of Poway, California, more particularly described in Exhibit "C" hereto ("Poway Commons Property"), and Affordable Owner is the owner of certain real property located in the City of Poway, California, more particularly described in Exhibit "D" hereto ("Affordable Owner Property; together with the MC Poway Property and the Poway Commons Property, the "PROPERTIES" and each as "PROPERTY"). The PROPERTIES are being developed into a planned development project as defined by California Civil Code Section 4175, pursuant Resolution No. P-19-16 of the City Council of the City of Poway approving Tentative Tract Map 19-005 and Development Review 19-004. The project will consist of three (3) individual residential Tots, two (2) commercial lots, and seven (7) common area Tots as shown on the Tentative Tract Map. WHEREAS, MC Poway has submitted to the CITY landscape plans ("LP 20-015") which include the Landscaping to be maintained within the Landscaping Areas along Poway Road, Civic Center Drive, and Tarascan Drive pursuant to this Landscape Maintenance Agreement. WHEREAS, the Landscaping will be maintained by the OWNERS. It is the purpose of this Agreement to assure that the Landscaping is maintained, by creating obligations that are enforceable against the OWNERS. It is intended that these obligations be enforceable by the CITY and the OWNERS. 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. 10179008.1 1.1 Maintenance. The OWNERS shall comply in all respects with the requirements of the approved LP20-015 plans and in particular agree to perform (or cause to be performed), at their 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 within the Landscaping Areas along Poway Road, Civic Center Drive, and Tarascan Drive without request or demand from CITY or any other agency. OWNERS shall have no responsibility or liability for any MAINTENANCE ACTIVITIES as to any landscaping except for the Landscaping located within the Landscaping Areas. 1.2 Responsible Owner. As among the OWNERS (and successor owner(s) of all or any part of the PROPERTIES), Poway Commons (and any successor owner(s) of the Poway Commons Property, each a "Responsible Owner") shall be responsible for performing all MAINTENANCE ACTIVITIES. If there is more than one owner of the Poway Commons Property, then each such owner shall be a Responsible Owner, and the share of the costs and expenses of all MAINTENANCE ACTIVITIES shall be split between all such Responsible Owners as they shall agree in writing. As among the OWNERS, the determination of the requirement for, or manner of performing, any MAINTENANCE ACTIVITIES shall be at the sole and absolute discretion of the Responsible Owner(s). Nothing herein shall limit CITY's rights under this Agreement as to all OWNERS. 1.3 Maintenance Budget; Maintenance Costs. The current projected annual projected budget ("Maintenance Budget") for the MAINTENANCE ACTIVITIES is set forth in Exhibit "E" attached hereto. The Responsible Owner(s) may develop a new Maintenance Budget ("Updated Maintenance Budget") for MAINTENANCE ACTIVITIES from time to time, and shall provide the other OWNERS with any such Updated Maintenance Budget. Poway Commons shall be responsible for fifty percent (50%), MC Poway shall be responsible for thirty-four and one-half percent (34.5%), and Affordable Owner shall be responsible for fifteen and one-half percent (15.5%) of the aggregate costs of any such Maintenance Work ("Maintenance Costs"). 1.4 Payment. MC Poway and Affordable Owner (each, a "Reimbursing Owner") shall each remit quarterly payments to the Responsible Owner(s) for its respective share of the estimated annual Maintenance Costs based on the most recently prepared Maintenance Budget or Updated Maintenance Budget, as applicable. Each such payment shall be due and payable within thirty (30) days after the Reimbursing Owner's receipt of invoices therefor. Responsible Owner(s) shall, within ninety (90) days after the end of each calendar year, deliver to each Reimbursing Owner a statement in reasonable detail showing such Reimbursing Owner's share of the actual Maintenance Costs incurred during the preceding year. If the Reimbursing Owner's payments pursuant to this Section 1.4 during the preceding year exceed such Reimbursing Owner's share as indicated on such statement, the Responsible Owner(s) shall credit the amount of such over -payment against the Reimbursing Owner's share of Maintenance Costs next becoming due. If the Reimbursing Owner's payments pursuant to this Section 1.4 during the preceding year were less than the Reimbursing Owner's share as indicated on such statement, the Reimbursing Owner shall pay to the Responsible Owner(s) the amount of the deficiency within ten (10) days after the Reimbursing Owner's receipt of such statement. If requested by a Reimbursing Owner, Responsible Owner(s) will deliver to such Reimbursing Owner, within thirty (30) days Page 2 10232151.1 after written request, a reasonably detailed report and copies of invoices of reflecting the actual Maintenance Costs for the preceding calendar year. 1.5 Insurance. The Responsible Owner(s) shall procure and maintain (or cause to be procured and maintained) in full force and effect throughout the term of this Agreement commercial general liability insurance against claims for personal injury, death or property damage with combined single limits of at least One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) general aggregate. Such coverage may be obtained under the general liability insurance policy maintained by the Responsible Owner(s). The limits of coverage for the foregoing insurance are subject to increase from time to time by mutual agreement of the OWNERS based upon the customary level of insurance then being maintained for similar projects. In no event shall the limits of any coverage maintained pursuant to this Agreement be considered as limiting liability under this Agreement. Notwithstanding the foregoing, the coverages and limits of such insurance shall comply in all respects with any insurance requirements of the CITY. Each other OWNER (following any transfer by MC Poway thereto of all or part of the MC Poway Property) the Homeowners Association (defined below) shall be named as additional insureds under the Responsible Owner(s) insurance policy(ies). 2. Right to Perform Maintenance. 2.1 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 OWNERS have failed to perform the same following CITY'S written demand if such failure continues for more than sixty (60) days after such demand, but if such failure cannot reasonably be cured within such sixty (60) day period, then such longer period as may be reasonably necessary to complete such cure so long as OWNERS commence such cure within such sixty (60) day period and thereafter proceed diligently to complete the cure. 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 OWNERS of their 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 OWNERS and said work shall be without warranty or representation by CITY as to safety or effectiveness, shall be deemed to be accepted by the OWNERS "as is", and shall be covered by OWNERS' indemnity provisions below. If CITY performs any of the MAINTENANCE ACTIVITIES, after CITY has demanded that OWNERS perform the MAINTENANCE ACTIVITIES and the OWNERS have failed to do so within the time stated above in this Section, then the OWNERS shall pay all of CITY's costs incurred in performing the MAINTENANCE ACTIVITIES, plus an administrative fee in the amount charged by CITY to other property owners under similar circumstances. The OWNERS' obligation to pay CITY's costs of performing MAINTENANCE ACTIVITIES is a continuing obligation. If the OWNERS fail to pay CITY's costs for performing MAINTENANCE ACTIVITIES, CITY may assess a lien on Page 3 10232151.1 the property or properties of the responsible parties pursuant to the procedures set forth in Poway Municipal Code Chapter 8.72. 2.2 OWNERS' Right to Perform Maintenance. Without limiting any of the CITY'S rights described in Section 2.1, if any Responsible Owner fails to perform any MAINTENANCE ACTIVITIES as required herein ("Defaulting Owner"), then any other OWNER (including any other non -defaulting Responsible Owner, if applicable) ("Non - Defaulting Owner") may notify the Defaulting Owner of such failure to perform, with such notice setting forth the MAINTENANCE ACTIVITIES that were not performed ("Default Notice"). If, following such Default Notice, the failure to maintain continues for thirty (30) days after delivery of the Default Notice (or, if such failure cannot reasonably be cured within such period, the Defaulting Owner fails to commence to cure within such thirty (30) day period, or thereafter fails to diligently proceed to complete the cure), then any Non -Defaulting Owner shall have the right, but not the obligation, to perform the MAINTENANCE ACTIVITIES described in the Default Notice. The Defaulting Owner shall reimburse each Non -Defaulting Owner for any costs incurred in connection with such MAINTENANCE ACTIVITIES within ten (10) days after delivery of receipts for expenses incurred in the performance of the MAINTENANCE ACTIVITIES described in such Default Notice. 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 Unless otherwise provided herein, all notices, demands or other communications given hereunder shall be in writing and shall be deemed to have been duly delivered upon personal delivery, or on the first (1st) business day after deposit with Federal Express or other overnight courier service, or as of the third (3rd) business day after mailing by United States registered or certified mail, return receipt requested, postage prepaid, or if given by email upon the earlier of (i) the date the recipient actually received and read the notice as evidenced by the recipient's (non -automatic) reply to such notice or other competent evidence of actual receipt, or (ii) the deemed given date of duplicate notice given by the sender by any mode of transmission allowed above other than email. Any notices to the OWNERS shall be addressed as follows: If to Poway Commons: Poway Commons, LLC c/o Meridian Development, LLC 9988 Hibert Street, Suite 210 San Diego, California 92131 Attn: Guy Asaro E-mail: gasaro@meridiandevelopment.com Page 4 10232151.1 If to MC Poway: MC Poway 97 LLC c/o Meridian Development, LLC 9988 Hibert Street, Suite 210 San Diego, California 92131 Attn: Guy Asaro E-mail: gasaro@meridiandevelopment.com If to Affordable Owner: Poway Commons Affordable CIC, LP 6339 Paseo del Lago Carlsbad, California 92011 Attn: Cheri Hoffman E-mail: cherihoffman@chelseainvestco.com Any party hereto may change its address for notices by giving written notice thereof to all parties delivered in the manner set forth herein. 4. Defense and Indemnity. 4.1 Indemnification of CITY. CITY shall not be liable for, and OWNERS 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 reasonable 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 the OWNERS, 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. OWNERS 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. 4.2 Indemnification of OWNERS. Without limiting any of CITY PARTIES' rights in Section 4.1 above, each OWNER shall indemnify, defend, protect and hold harmless each other OWNER from and against any and all CLAIMS, including without limitation, reasonable attorneys' fees and court costs, related to this Agreement and arising either directly or indirectly from (i) any negligence or willful misconduct of the indemnifying OWNER or its contractors, licensees, agents, servants or employees, or (ii) any breach by the indemnifying OWNER of the provisions of this Agreement, except to the extent any such CLAIM arises either Page 5 10232151.1 directly or indirectly from the negligence or willful misconduct of the indemnified OWNER or any of its contracts, licensees, agents, servants or employees, 5. Agreement Binds Successors and Runs With the PROPERTIES. 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 OWNERS and CITY, shall be deemed to be for the benefit of all persons owning any interest in the PROPERTIES (including the interest of CITY or its successors in any 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 PROPERTIES, who shall be deemed to have consented to and become bound by all the provisions hereof. MC Poway intends to convey title to portions of the MC Poway Property to a homeowners association for all or part of the MC Poway Property ("Homeowners Association"). Notwithstanding anything in this Agreement to the contrary, each OWNER, as applicable, shall be released from all obligations under this Agreement, as to all or any portion of such OWNER'S Property burdened and/or benefitted by this Agreement, on the date all or such portion of such Property is sold, conveyed or otherwise transferred by such OWNER to any third party (including any such transfer by MC Poway to any Homeowners Association). 6. OWNERS' Continuing Responsibilities Where Work Commenced or Permit Obtained. Notwithstanding any other provision of this Agreement, no transfer or conveyance of the PROPERTIES or any portion thereof shall in any way relieve OWNERS of or otherwise affect OWNERS' 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 disturbance work, except as to MC Poway after completion of its development project on the MC Poway Property and the transfer of portions thereof to, and acceptance by, the Homeowners Association as provided in Section 5 above. 7. 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. 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, which may include the CITY'S establishment of a Landscape Maintenance District, will assure the ongoing maintenance of the LANDSCAPING or that it is no longer necessary to assure such maintenance. 8. Governing Law and Severability. This Agreement shall be govemed 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. OWNERS 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. 9. 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 Page 6 10232151.1 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. MC POWAY: MC POWAY 97 LLC, a Delaware limited liability company By: Meridian Communities, LLC, a Delaware limited 1': bility company Its: Managin • By: ii!,' G • saro, Manager POWAY COMMONS: POWAY COMMONS, LLC, a Delaware limited Iiabi 'ty company By: anager AFFORDABLE OWNER: POWAY COMMONS AFFORDABLE CIC, LP, a California limited partnership Date: 77/ / , 2021 Date: sib/ /! , 2021 By: Pacific Southwest Community Development Corporation, a California nonprofit public benefit corporation Its: Managing General Partner By: Name: Robert Laing Its: President/Executive Director By: CIC Poway Commons Affordable, LLC, a Califomia limited liability company Its: Admini ative General Partner By: Name: Cheri Ho Its: President Page 7 Date: , 2021 Dated:"1'/ ., 2021 10232151,1 } 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 Se —Die.�Q 1 ( 1 ,, 2C1 before me,'�, e-c — C�� �j �v10�►C— On �) J Date Here Insert Name and Title of the Officer personally appeared GC..-{ f S0ie, Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(gf whose name to the within instrument and acknowledged to me tha' i..' a/t1A, executed the same i authorized capacity('), and that b -r/tr signatureffe') on the instrument the perso upon behalf of which the personacted, executed the instrument. TROY FRIEDECK Notary Public - California $ San Dieto County Commission # 2300428 My Comm. Expires Aug 5, 2023 Place Notary Seal and/or Stamp Above subscribed /tAir or the entity 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 re 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: Signer's Name: ❑ Corporate Officer — Title(s): 0 Corporate Officer — Title(s): ❑ Partner — 0 Limited 0 General 0 Partner — 0 Limited 0 General ❑ Individual 0 Attorn- in Fact 0 Individual 0 Attorney in Fact ❑ Trustee 0 Gu. -aian or Conservator 0 Trustee 0 Guardian or Conservator ❑ Other: 0 Other: Signer is Represents Signer is Representing: ©2018 National Notary Association 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 Califor County ofxreot On Date personally appeared before me, 1 Al Sf4rn0c cic ii/D-1-0-Crioff Pa-6`i2.: H r Insert Name and Title the Officer z, Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(4'whose namegis/a;kesubscribed to the within instrument and acknowledged to me that he/she/tl y executed the same in hj+s/her/tJ3etY authorized capacity(iX), and that by hie/her/tl lr signature() on the instrument the person(g or the entity upon behalf of which the personV acted, executed the instrument. N. ST. AMOUR Notary Public - California z San Diego County Commission 12344944 My Comm. Expires Feb 3, 2025 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 Signature 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 — ❑ Limited ❑ General O Individual 0 Attorney in Fact ❑ Trustee 0 Guardian or Conservator o Other: Signer is Representing: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Trustee o Other: ❑ Attorney in Fact D Guardian or Conservator Signer is Representing: ©2019 National Notary Association 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. MC POWAY: MC POWAY 97 LLC, a Delaware limited liability company By: Meridian Communities, LLC, a Delaware limited liability company Its: Managing Member By: Guy Asaro, Manager POWAY COMMONS: POWAY COMMONS, LLC, a Delaware limited liability company By: Guy Asaro, Manager AFFORDABLE OWNER: POWAY COMMONS AFFORDABLE CIC, LP, a California limited partnership Date: , 2021 Date: , 2021 By: Pacific Southwest Community Development Corporation, a Califomia nonprofit public benefit corporation Its: Managing Ge 11 Partner By: att. Date: C/ 2 7/ , 2021 Name: Robert Laing J Its: President/Executive Director By: CIC Poway Commons Affordable, LLC, a California limited liability company Its: Administrative General Partner By: Dated: , 2021 Name: Cheri Hoffman Its: President Page 7 10232151,1 California All -Purpose Acknowledgment 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 M A---y a 7 ) I before me, Gregg Miller, Notary Public, personally appeared GREGG MILLER Notary Public California a San Diego County Commission # 2345570 My Comm. Expires Feb 7, 2025 who proved to me on the basis of satisfactory evidence to be the person $ whose name(a) Ware subscribed to the within instrument and acknowledged to me that laejshe/tb4y executed the same in lignadritifeir authorized capacity((e ), and that by his their signature on the instrument the person(a), or the entity u on behalf of which the person(2) 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 . eal. Signature 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 reattachmenSof this form to another document. Description of Attached Document Title or Type of Document: Document Date: t Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Number of Pages: Individual _ Corporate Officer — Tltle(s): Partner - Umited General _ Attorney in Fact Trustee _ Guardian or Conservator Other: Signer is representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer's Name: Individual _ Corporate Officer — Tdle(s): Partner - Umited General _ Attorney in Fact Trustee _ Guardian or Conservator Other: Signer is representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here CITY OFP• AY: By: R Bert J. M ; is Director of Development Servic APPROVED AS TO FORM: Office of the City Attorney Alan Fenstermacher, City Attorney Page 8 Date: APPROVED AS TO CONTENT: Engineering Division 10232151.1 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 13, 2021 Ana Alarcon) Nia�a�(1 �0\ i� , Date Here Insert Name and Title of the Officer personally appeared Robert J. Manis Name(s) of Signer(s) before me, 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. z ANA ALARCON COMM. #2333444 z Notary Public . California c San Diego County Comm. E .ires Se.. 4 2024 Place Notary Seal Above WITNESS my hand and official seal. Signature OPTIONAL cifk 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: 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 ❑ General ❑ 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 CITY OF POWAY: By: Robert J. Manis Director of Development Services APPROVED AS TO FORM: Date: ,2021 APPROVED AS TO CONTENT: Office of the City Attorney Engineering Division Alan Fenstermacher, City Attorney Melody Rocco, P.E. City Engineer Page 8 10232151.1 EXHIBIT "A" DEPICTION OF LANDSCAPE MAINTENANCE AREAS LANDSCAPE MAIN'. AREAS I I MAP 6136 -K c\--1 0 POWAY ROAD LOT 1 WAP 1\l O , 1 6445 SHEET 1 OF 1 1 1 1 1 MAP 5934 >.I --I- LOT 2 -‹r;� PCL 1 PM -0 LOT 3 8847 cn u-1 -7 -sr MAP NO. 16445 LOT S 1 rco C) ---� z- Ir 41(4 CIP U) le4 U") t7'CI) LANDSCAPE MAINT. AREAS IL) P4 Imo/ PCL 1 P ill 9105 NOT TO SCALE HUNSAKER & ASSOCIATES SAN DIEGO, INC. 9707 Wapies Street {858)558-4500 San Diego, CA 92121 R:\1558\&Mop\EX Poway Commons— EXHIBIT A Landscape Maint SHT 01,dwg W.O. 3345-0008 EXHIBIT "B" LEGAL DESCRIPTION OF MC POWAY PROPERTY LOTS 1 AND 5 OF CITY OF POWAY TTM 19-005, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 16445 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON APRIL 15, 2021, B-1 10029752.2 4/20/21 EXHIBIT "C" LEGAL DESCRIPTION OF POWAY COMMONS PROPERTY LOTS 3 AND 4 OF CITY OF POWAY TTM 19-005, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 16445 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON APRIL 15, 2021. C-1 10029752.2 4/20/21 EXHIBIT "D" LEGAL DESCRIPTION OF AFFORDABLE PROPERTY LOT 2 OF CITY OF POWAY TTM 19-005, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 16445 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON APRIL 15, 2021. D-1 10029752.2 4/20/21 ESTIMATED SITE TAKE -OFF POWAY COMMONS (ROW) ITEANDESCRIPTION QTY. UNIT Hardscape S'r,e Amer ties (ROW Concrete Paving 5,421 sf Tree Gates 13 ea Trash Receptacles 4 ea Bike Rack 2 ea Subtolal Softscape ;RO'vr Trees 24" Box Tree 19 ea 36" Box Tree 2 ea Shrubs 1 Gallon 323 ea G+rotaidooyer 1 Gallon 146 ea 3" Depth Bark Mulch 1,420 sf Subtotal *Take -offs based on 21863-PCLandscapeSetPublic_20-07-28 E-1 2202I 100 FIXED COSTS 200 OPERATING COSTS 300 RESERVES 400 ADMINISTRATION 500 CONi17NGENCY BUDGET SUMMARY "Poway Commons' - R.O.W. Shared Cost Budget 100•SUB TOTAL 200 -SUB TOTAL 300• SUB TOTAL 400-SUBTOTAL • TOTAL (100-400) 500 • SUB TOTAL • TOTAL BUDGET POWAY COMMONS COMMF;SCIAL OWNER : 5000% 'POWAY COMMONS BOA 34.50%`. AFFORDABLE APARTMENTS 15.50% Total Monthly Totil Annual $12,so $150 $365.01 $4,380 $168.37 $2,020 $710.47 $19.54 $730.01 $365.00. $251.85 .: $113.15 $1,975 1025 $234 $8,759 $4,380 .., $3 022 $1.358 E-2