Landscape Maintenance Agreement Fairfield 2022-0369566RECORDING REQUESTED BY:
�j CITY OF POWAY
WHEN RECORDED MAIL TO:
CITY CLERK CITY OF POWAY
PO BOX 789
POWAY, CA 92074
APN: 317-490-55 & 317-490-69
DOC# 2022-0369566
IIIII III I (I II II� I III IIII IIIII III � IIIII II I I II I III IIII IIII
Sep 20, 2022 11:33 AM
OFFICIAL RECORDS
Ernest J. Dronenburg, Jr.,
SAN DIEGO COUNTY RECORDER
FEES: $182.00 (SB2 Atkins: $150.00)
PAGES:7
SPACE ABOVE THIS LINE FOR RECORDER'S USE
LANDSCAPE MAINTENANCE AGREEMENT
FAIRFIELD
This LANDSCAPE MAINTENANCE AGREEMENT ("Agreement") for the maintenance of certain
landscape improvements ("Landscaping") along sections ofthe public right-of-way known as Poway
Road, is entered into between Fairfield Poway, LLC, ("OWNER") and the City of Poway ("CITY").
The maintenance areas subject to this agreement areas depicted in Exhibit "A."
WHEREAS, OWNER is the owner of certain real property located in the City of Poway, California,
more particularly described in Exhibit "B" ("PROPERTY"). The PROPERTY is being developed into
a planned development project as defined by California Civil Code Section 4175, pursuant
Resolution No. 20-091 of the City Council of the City of Poway approving Tentative Tract Map 20-
003 and Development Review 20-002. The project will consist of one residential lot as shown in the
Tentative Tract Map.
WHEREAS, OWNER has submitted to the CITY landscape plans ("LP 21-001") which includes the
Landscaping to be maintained along Poway Road pursuant to this Agreement.
WHEREAS, the Landscaping will be maintained by the OWNER It is the purpose of this Agreement
to assure that the Landscaping is maintained, by creating obligations that are enforceable against
the OWNER It is intended that these obligations be enforceable by the CITY.
NOW, THEREFORE, for consideration of (a) CITY's approval of the above development
applications and (b) the mutual covenants setforth herein, IT IS HEREBY AGREED AS FOLLOWS:
Landscape Maintenance Agreement. Owner shall comply in all respects with the
requirements of the approved LP21-001 plans and in particular agrees to perform, at its 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 median of, and along Poway Road,
without request or demand from CITY or any other agency.
CITY's Right to Perform Maintenance. It is agreed that CITY shall have the right, but not
the obligation, to elect to perform any or all of the MAINTENANCE ACTIVITIES if, in the
CITY's sole judgment, OWNER has failed to perform the same. Such maintenance by the
CITY shall be conducted in accordance with the nuisance abatement procedures setforth
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 OWNER 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 OWNER and said work shall be without warranty or representation by CITY
as to safety or effectiveness, shall be deemed to be accepted by the OWNER "as is", and
shall be covered by OWNER indemnity provisions below.
If CITY performs any of the MAINTENANCE ACTIVITIES, after CITY has demanded that
OWNER perform the MAINTENANCE ACTIVITIES and the OWNER have failed to do so
within a reasonable time stated in the CITY's demand, then OWNER shall pay all of CITY's
costs incurred in performing the MAINTENANCE ACTIVITIES, plus an administrative fee.
The OWNER's obligation to pay CITY's costs of performing MAINTENANCE ACTIVITIES
is a continuing obligation. If OWNER fails to pay CITY's costs for performing
MAINTENANCE ACTIVITIES, CITY may assess a lien on the property or properties of the
responsible parties pursuant to the procedures set forth in Poway Municipal Code Chapter
8.72.
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
4. Defense and Indemnity. CITY shall not be liable for, and OWNER shall defend and
indemnify CITY and the employees and agents of CITY (collectively "CITY PARTIES"),
against any and all claims, demands, liability, judgments, awards, fines, mechanic's
liens or other liens, labor disputes, losses, damages, expenses, charges or costs of any
kind or character, including attorneys' fees and court costs (hereinafter collectively
referred to as "CLAIMS"), related to this Agreement and arising either directly or
indirectly from any act, error, omission or negligence of OWNER, its contractors,
licensees, agents, servants or employees, including, without limitation, claims caused
by the concurrent negligent act, error or omission, whether active or passive, of CITY
PARTIES. OWNER 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.
5. Agreement Binds Successors and Runs With the PROPERTY. 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,
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administrators, successors and assigns of OWNER and CITY, shall be deemed to be
for the benefit of all persons owning any interest in the PROPERTY (including the
interest of CITY or its successors in the easement granted herein). It is the intent of the
parties hereto that this Agreement shall be recorded and shall be binding upon all
persons purchasing or otherwise acquiring all or any lot, unit or other portion of the
PROPERTY, who shall be deemed to have consented to and become bound by all the
provisions hereof.
6. OWNER's Continuing Responsibilities Where Work. Commenced or Permit
Obtained. Notwithstanding any other provision of this Agreement, no transfer or
conveyance of the PROPERTY or any portion thereof shall in any way relieve OWNER
of or otherwise affect OWNER's 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.
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 OWNER. 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
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 governed by the laws of
the State of California. Venue in any action related to this Agreement shall be in the
Superior Court of the State of California, County of San Diego. OWNER hereby waives
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 expenses, including its expert fees, attorneys' fees, courts costs, arbitration
costs, and any other fees.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth
hereinafter.
Fairfield, LLC
su 4.d,4,j
By:
Title:
CITY OF POWAY:
Bt Robert'J. Mani' v
Director of Development Services
APPROVED AS TO FORM:
Office of the City Attorney
Alan Fenstermacher, City Attorney
4
Date:
,2022
Date: 2022
APPROVED AS TO CONTENT:
Engineering Division
.. ". a•
LlIgM.Mleer
Re: Landscape Maintenance Agreement:
FAIRFIELD POWAY LLC,
a Delaware limited liability company
By: FRH CC MANAGER LLC,
a Delaware limited liability company
its Non -Member Manager
By:
Name: ' d Mc,Goy
Title: S�Vi6e President
Date: September 13. 2022
EXHIBIT A
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EXHIBIT B
EGAL DESCRIPTION OF PROPERTY
Real property in the City of Poway, County of San Diego, State of California, described as follows:
PARCEL 1:
THE WESTERLY 534 FEET OF THE EASTERLY 1034 FEET OF THE NORTHERLY 411 FEET OF THE
EAST HALF OF THE SOUTHEAST QUARTER OF SECTION 14, TOWNSHIP 14 SOUTH, RANGE 2
WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE
OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF, NOVEMBER 19, 1880.
EXCEPT THEREFROM ALL OIL, GAS, MINERALS, AND OTHER HYDROCARBON SUBSTANCES
LYING BELOW THE SURFACE OF SAID LAND, BUT WITH NO RIGHT OF SURFACE ENTRY, AS
PROVIDED IN DEEDS OF RECORD.
PARCEL 2:
THOSE PORTIONS OF PARCELS 1 AND 2 OF PARCEL MAP NO. 3922, IN THE CITY OF POWAY,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, JULY 11, 1975, AS FILE NO. 75-179597 OF OFFICIAL
RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID PARCEL MAP NO. 3922, BEING A POINT IN
THE CENTER LINE OF THAT CERTAIN COUNTY ROAD, KNOWN AS POWAY ROAD, (ROAD
SURVEY NO. 1713); THENCE ALONG THE NORTHERLY LINE OF SAID PARCEL MAP, BEING
ALONG SAID CENTER LINE, SOUTH 88003-51" EAST, 157.92 FEET; THENCE LEAVING SAID
NORTHERLY LINE AND SAID CENTER LINE SOUTH 01 °19'20" WEST, 197.03 FEET; THENCE
SOUTH 88003'51" EAST, 82.10 FEET; THENCE SOUTH 01°19'20" WEST, 16.00 FEET; THENCE
SOUTH 88003'51" EAST, 110.00 FEET TO THE EASTERLY LINE OF SAID PARCEL MAP; THENCE
ALONG THE EASTERLY, SOUTHERLY AND WESTERLY LINE OF SAID PARCEL MAP AS FOLLOWS:
SOUTH 01 019'20" WEST, 197.97 FEET TO THE SOUTHEAST CORNER; NORTH 88003,511, WEST,
350.02 FEET TO THE SOUTHWEST CORNER AND NORTH 01 019'20" EAST, 411.02 FEET TO THE
POINT OF BEGINNING.
PARCEL 2A:
AN EASEMENT FOR INGRESS AND EGRESS, UTILITIES INCLUDING WITHOUT LIMITATION,
WATER, GAS, ELECTRICITY, TELEPHONE, SEWER, DRAINAGE AND CABLE TELEVISION, AND
INCIDENTAL PURPOSES OVER, UNDER, ABOVE AND ACROSS THE EASTERLY 17.00 FEET OF
PARCEL 1 OF PARCEL MAP NO. 3922, FILED IN THE OFFICE OF THE COUNTY RECORDER OF
THE COUNTY OF SAN DIEGO, JULY 11, 1975, AS FILE NO. 75-179597 OF OFFICIAL RECORDS.
APN: 317-490-55-00 and 317-490-69-00
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