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Private Facilities Maintenance Agreement 2021-0501874Recording Requested By: First American Title Company Homebuilder Services Division RECORDING REQUESTED BY: CITY OF POWAY AND WHEN RECORDED MAIL TO: CITY CLERK CITY OF POWAY PO BOX 789 POWAY, CA 92074 DOC# 2021-0501874 111111111111 lllll 1111111111111111111111111 lllll lllll 111111111111111111 Jul 13, 2021 04:59 PM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER FEES: $35.00 (S82 Atkins: $0.00) PAGES:8 (THIS SPACE FOR RECORDER'S USE) APN: Pending Final Map D~~ (' ~ ~'bv:-.::;""{{'\<:\ \ PRIVATE FACILITIES MAINTENANCE AGREEMENT This PRIVATE FACILITIES MAINTENANCE AGREEMENT ("Agreement"), dated for reference purposes as the :2-1.-day of J l}'(\C, , 20 ZI , is entered into between MC POWAY 97 LLC, (hereinafter referred to as "DEVELOPER"), POWAY COMMONS HOMEOWNERS ASSOCIATION, (hereinafter referred to as "ASSOCIATION"), and the CITY OF POWAY, a municipal corporation (hereinafter referred to as "CITY"), for the benefit of future condominium owners (hereinafter referred to as "CONDOMINIUM OWNERS," which shall include the DEVELOPER to the extent the DEVELOPER retains any ownership interest in any lot or lots within the PROPERTY) who will use the PRIVATE FACILITIES. WHEREAS, this Agreement is required as a condition of approval of Resolution No. 19-16 for Tentative Tract Map 19-005, specifically to address Sections 6(F)(9), 6(J)(4), 6(J)(5) and 6(L)(4)(b) of the conditions of approval, and Development Review 19-004; and WHEREAS, DEVELOPER wishes to provide for the maintenance and repair of those certain PRIVATE FACILITIES described as: the private streets, curbs, gutters, sidewalks, walkways, drainage ditches, storm drain, sewer, fire water, domestic water, irrigation, landscaping, fencing, walls, lighting, and building structures as depicted on the building, grading and landscape plans (B20-1020 G19-0011, G20-0007, LP20-023) hereinafter referred to as the "PRIVATE FACILITIES"); and WHEREAS, DEVELOPER is the owner of certain real property located in the City of Poway, California, more particularly described as Lots 1 and 5 of Map No. 16445, in the County of San Diego, State of California, filed in the office of the County Recorder of San Diego County, April 21, 2021 (hereinafter referred to as the "PROPERTY"), which is being subdivided and developed as POWAY COMMONS that will use and enjoy the benefit of such PRIVATE FACILITIES; and WHEREAS, it is the mutual desire of the parties hereto that the PRIVATE FACILITIES be maintained in a safe and usable condition; and WHEREAS, it is the mutual desire of the parties hereto to establish a method for the maintenance and repair of the PRIVATE FACILITIES and for the apportionment of the expense of such maintenance and repair; and WHEREAS, DEVELOPER has created or will create the ASSOCIATION, to which the CONDOMINIUM OWNERS will belong, for the purposes of maintaining, repairing, and replacing the common areas within the PROPERTY, including, without limitation, the PRIVATE 1 Recording Requested By: First American Title Company Homebuilder Services Division RECORDING REQUESTED BY: CITY OF POWAY AND WHEN RECORDED MAIL TO: CITY CLERK CITY OF POWAY PO BOX 789 POWAY, CA 92074 APN: Pending Final Map (THIS SPACE FOR RECORDER'S USE) PRIVATE FACILITIES MAINTENANCE AGREEMENT This PRIVATE FACILITIES MAINTENANCE AGREEMENT ("Agreement"), dated for reference purposes as the 'J,,1,-day of J lJ)'\G.. , 20 ZI , is entered into between MC POWAY 97 LLC, (hereinafter referred to as "DEVELOPER"), POWAY COMMONS HOMEOWNERS ASSOCIATION, (hereinafter referred to as "ASSOCIATION"), and the CITY OF POWAY, a municipal corporation (hereinafter referred to as "CITY"), for the benefit of future condominium owners (hereinafter referred to as "CONDOMINIUM OWNERS," which shall include the DEVELOPER to the extent the DEVELOPER retains any ownership interest in any lot or lots within the PROPERTY) who will use the PRIVATE FACILITIES. WHEREAS, this Agreement is required as a condition of approval of Resolution No. 19-16 for Tentative Tract Map 19-005, specifically to address Sections 6(F)(9), 6(J)(4), 6(J)(5) and 6(L)(4)(b) of the conditions of approval, and Development Review 19-004; and WHEREAS, DEVELOPER wishes to provide for the maintenance and repair of those certain PRIVATE FACILITIES described as: the private streets, curbs, gutters, sidewalks, walkways, drainage ditches, storm drain, sewer, fire water, domestic water, irrigation, landscaping, fencing, walls, lighting, and building structures as depicted on the building, grading and landscape plans (820-1020 G19-0011, G20-0007, LP20-023) hereinafter referred to as the "PRIVATE FACILITIES"); and WHEREAS, DEVELOPER is the owner of certain real property located in the City of Poway, California, more particularly described as Lots 1 and 5 of Map No. 16445, in the County of San Diego, State of California, filed in the office of the County Recorder of San Diego County, April 21, 2021 (hereinafter referred to as the "PROPERTY"), which is being subdivided and developed as POWAY COMMONS that will use and enjoy the benefit of such PRIVATE FACILITIES; and WHEREAS, it is the mutual desire of the parties hereto that the PRIVATE FACILITIES be maintained in a safe and usable condition; and WHEREAS, it is the mutual desire of the parties hereto to establish a method for the maintenance and repair of the PRIVATE FACILITIES and for the apportionment of the expense of such maintenance and repair; and WHEREAS, DEVELOPER has created or will create the ASSOCIATION, to which the CONDOMINIUM OWNERS will belong, for the purposes of maintaining, repairing, and replacing the common areas within the PROPERTY, including, without limitation, the PRIVATE 1 FACILITIES. As each phase of the PROPERTY is annexed to the jurisdiction of the ASSOCIATION pursuant to the Declaration of Covenants, Conditions and Restrictions for Poway Commons ("Declaration") recorded or to be recorded against the PROPERTY by DEVELOPER, the ASSOCIATION shall assume all maintenance obligations regarding the PRIVATE FACILITIES within each annexed phase of the PROPERTY; and WHEREAS, it is the mutual intention of the parties that this Agreement constitute a covenant running with the land, binding upon each successive CONDOMINIUM OWNER of all or any portion of the PROPERTY. NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS: 1. The property benefited by this Agreement is the PROPERTY. The present and successive CONDOMINIUM OWNERS of all or any portion of the PROPERTY are expressly bound hereby for the benefit of the PROPERTY. 2. The cost of maintaining the PRIVATE FACILITIES shall be divided equally among the subdivided parcels created in the PROPERTY and paid by each CONDOMINIUM OWNER or his or her heirs, assigns and successors in interest. Such costs and expenses shall be collected by the ASSOCIATION as assessments in accordance with the Declaration. 3. The repairs and maintenance to be performed under this Agreement by or on behalf of the ASSOCIATION shall be limited to the following, unless the consent for additional work is given by the Board of Directors of the ASSOCIATION: reasonable and normal road improvement maintenance work to adequately maintain the PRIVATE FACILITIES and any related drainage facilities to permit normal access, ingress and egress to and from the condominiums within the PROPERTY. Repairs and maintenance under this Agreement shall include, but are not limited to: repairing and resurfacing roadbeds, filling chuckholes, repairing cracks, curbs, gutters, curb stops, sidewalks, repairing and maintaining walls, fences, landscaping, lighting, drainage structures, drainage pipes, stormwater treatment devices, swales, storm water conveyance appurtenances, sewer lines (routine cleanings shall be performed), water lines, fire lines, fire hydrants and associated appurtenances, removing trash and debris, maintaining signs, markers, striping and lighting, if any, and such other work as is reasonably necessary or proper to repair and preserve the PRIVATE FACILITIES for normal access, ingress and egress purposes. 4. The obligation of the ASSOCIATION to repair and maintain the PRIVATE FACILITIES within each phase of development of the PROPERTY, as herein set forth, shall commence upon the occurrence of both of the following events: (a) when the PRIVATE FACILITIES have been completed and approved by the CITY, and (b) such phase of the PROPERTY has been annexed to the jurisdiction of the ASSOCIATION pursuant to the Declaration. DEVELOPER (and/or any successor developer to which any portion of the PROPERTY is conveyed prior to annexation pursuant to the Declaration) shall maintain the PRIVATE FACILITIES prior to the occurrence of the events described in items (a) and (b) preceding. 5. After the PROPERTY has been annexed to the jurisdiction of the ASSOCIATION pursuant to the Declaration, the cost of any extraordinary repair required to correct damage to the PRIVATE FACILITIES shall be the responsibility of the ASSOCIATION except when a CONDOMINIUM OWNER is the party causing the need for such extraordinary repair. If any such extraordinary repair is caused by a CONDOMINIUM OWNER, the ASSOCIATION shall assess and collect an Enforcement Assessment (as defined in the 2 Declaration) against such CONDOMINIUM OWNER pursuant to the Declaration in the amount of the costs of such extraordinary repair. The ASSOCIATION shall promptly commence such extraordinary repair regardless of reimbursement from the CONDOMINIUM OWNER. The repair shall be such as to restore the PRIVATE STREET to the condition existing prior to said damage. 6. Should any CONDOMINIUM OWNER fail to pay the pro rata share of costs and expenses as provided in this Agreement and the Declaration, then the ASSOCIATION shall thereafter have all rights with regard to collection of delinquent assessments as are provided in the Declaration. 7. The ASSOCIATION shall at all times maintain liability insurance covering its activities with regard to use and maintenance of the PRIVATE FACILITIES. In the event the ASSOCIATION retains a contractor to perform any of its maintenance obligations with regard to the PRIVATE FACILITIES, the ASSOCIATION shall require such contractor likewise to maintain liability insurance to cover any liability arising as a result of its activities with regard to such maintenance activities. 8. The ASSOCIATION shall defend and indemnify and hold harmless CITY, CITY's engineer and their consultants and each of their officials, directors, officers, agents and employees ("City Parties") from and against all liability, claims, damages, losses, expenses, personal injury and other costs, including costs of defense and attorney's fees (collectively "Claims"), incurred by or payable to any other CONDOMINIUM OWNER, any user of the PRIVATE FACILITIES, or to any other third parties arising out of or in any way related to the use, repair or maintenance of the PRIVATE FACILITIES, except to the extent such Claims arise from or relate to the gross negligence or willful misconduct of the City or the City Parties. Nothing in this Agreement, the specifications, or other contract documents or CITY's approval of the plans and specifications for or inspection of the work regarding the PRIVATE FACILITIES is intended to include a review, inspection, or acknowledgment of a responsibility for any such matter, and CITY, CITY's engineer, and their consultants, and each of their officials, directors, officers, employees and agents, shall have absolutely no responsibility or liability therefore. 9. If in the CITY's sole reasonable judgment the PRIVATE FACILITIES are not being maintained to standards set forth in Paragraph 3 of this Agreement, the CITY may thereupon provide written notice to the Board of Directors of the ASSOCIATION to initiate repairs or construction within ninety (90) days. Upon failure to demonstrate good faith to make repairs or construction within ninety (90) days of receipt of such notice, the CONDOMINIUM OWNERS and the ASSOCIATION agree that the CITY may make all needed repairs to the PRIVATE FACILITIES to meet the standards set forth in Paragraph 4 and to then assess the costs thereof to the ASSOCIATION. The ASSOCIATION shall reimburse the CITY for all reasonable costs incurred by the CITY in connection with such maintenance activities. If the ASSOCIATION does not so reimburse the CITY within thirty (30) days after CITY's demand, then CITY may pursue all of its remedies at law or in equity. 10. If the CITY elects to make necessary repairs in accordance with Paragraph 9 above, said work shall be without warranty. Said repair shall be accepted "as is" by the CONDOMINIUM OWNERS and the ASSOCIATION without any warranty of workmanship. 11. The foregoing covenants shall run with the land and shall be deemed to be for the benefit 3 of the land of each of the CONDOMINIUM OWNERS and each and every person who shall at any time own all or any portion of the PROPERTY referred to herein. 12. It is understood and agreed that the covenants herein contained shall be binding on the heirs, executors, administrators, successors and assigns of each of the DEVELOPER, CONDOMINIUM OWNERS and the ASSOCIATION. 13. It is the purpose of the signatory hereto that this instrument be recorded to the end and intent that the obligations hereby created shall be and constitute a covenant running with the land and any subsequent purchaser of all or any portion of the PROPERTY, by acceptance of delivery of a deed and/or conveyance, regardless of form, shall be deemed to have consented to and become bound by this AGREEMENT. 14. The terms of this Agreement may be amended in writing upon approval of the Board of Directors of the ASSOCIATION and consent of the CITY. 15. This Agreement shall be governed by the laws of the State of California. In the event that any of the provisions of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions shall not be affected thereby. IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth hereinafter. DEVELOPER: MC POWAY 97 LLC, a Delaware limited liability company By: Meridian Communities, LLC, a Delaware limited liabilit company Its: (signature must be notarized) ASSOCIATION: POWAY COMMONS HOMEOWNERS ASSOCIATION, a California nonprofit mutual benefit corporation ('¾ ,~. ~ I ' ' ~v~i,,1 By: (' . I .. -'---.,>~ Date: Name: Rey\RO.,SS Its: Presidenr' ~~:m~~ Date: Its: Chief Financial Officer (signatures must be notarized) 4 APPROVED AS TO FORM: Office of the City Attorney Alan Fenstermacher City Attorney Date: __,__,7f ___ <?/4~L _ (signature must be notarized) APPROVED AS TO CONTENT: 5 CITY OF POWAY: Date: _______ _ Robert J. Manis Director of Development Services (signature must be notarized) APPROVED AS TO FORM: Alan Fenstermacher City Attorney 5 APPROVED AS TO CONTENT: Engineering Division Melody Rocco, P.E. City Engineer 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 San::D1 ~0 ;; SuV\IV ~d., ~, Date } )f'01. hie.de.4-~~<y -p~,0 Flere Insert Name and Title of the Officer before me, personally appeared GLA...v ~So<"O) ~ fa:?&5' ) o.~ Sean ~-we\\ Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the persor@whose name@Ji'~ubscribed to the within instrument and acknowledged to me that ~/si<e.@executed the same in ~1tT'9 authorized capacity@ and that by ~/t,Jr€If)signature(9on the instrument the persor@ or the entity upon behalf of which the perso~acted, executed the instrument. ~-----··-····~ • TROY F~IEDECK : -Net•ry Public -C•liforni: i S•n DiPto Ceunty f Commissi•n # 2300.21 - My Comm. Ex~irpsAu~ 5, 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: ----------------c;;,,,,cc_ __________ _ Document Date: _________________ -'7""c:.._ ___ 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): ~,,c------□ Corporate Officer -Title(s): ______ _ □ Partner -□ Limited □ G □ Partner -□ Limited □ General □ Individual ttorney in Fact □ Individual □ Attorney in Fact □ Trustee □ Guardian or Conservator □ Trustee □ Guardian or Conservator □ Other: □ Other: Signer is Signer is Representing: _________ _ ©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 July 8, 2021 before me, ___ ___..:....A=n.;;..;:ac...cA;___;;c_;;la=r..;:.c..::..o.:...;;.n.....;.N..;;..o;;:...ct=a'-'--ry~P....::u-=b'-"li'-"c _____ _, Date Here Insert Name and Title of the Officer personally appeared -------~R"""'oc...cb~e~rt..c.....=c.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. 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. ANA ALARCON COMM. #2333444 z Notary Public • California ~ Signature----'a'"".-=·~---/H.---· _{1Pd __ ~ __ 1 _-__ _ San Diego County ... '.JJll~:V M Comm. Ex ·,es Se . 14, 2024 Signature of Notary Public Place Notary Sea/ Above ---------------OPTIONAL--------------- Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Private Facilities Maintenance Agreement Document Date: __________________ Number of Pages: _____ _ Signer(s) Other Than Named Above: _______________________ _ Capacity(ies) Claimed by Signer(s) Signer's Name: ___________ _ Signer's Name: ___________ _ D Corporate Officer -Title(s): ______ _ D Corporate Officer -Title(s): ______ _ D Partner -D Limited D General D Partner -D Limited D General D Individual D Attorney in Fact D Individual D Attorney in Fact D Trustee D Guardian or Conservator D Trustee D Guardian or Conservator D Other: ______________ _ D Other: _____________ _ Signer Is Representing: ________ _ Signer Is Representing: ________ _ ~ ,. ©2016 National Notary Association• www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907