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Private Facilities Maintenance Agreement 2023-00496722/27/23, 3 :07 PM 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 Batch 15393869 Confirmation DOC# 2023-0049672 1111111111111111111111111111111111111111111111111111111111111111111111 Feb 27, 2023 01 :31 PM OFFICIAL RECORDS JORDAN Z. MARKS, SAN DIEGO COUNTY RECORDER FEES: $32.00 (SB2 Atkins: $0.00) PAGES:? (THIS SPACE FOR RECORDER'S USE) PRIVATE FACILITIES MAINTENANCE AGREEMENT This PRIVATE FACILITIES MAINTENANCE AGREEMENT ("Agreement"), dated for reference purposes as the 2.:l'-4 day of Se,piCMW , 2022-, is entered into between Fairfield Poway LLC, (hereinafter referred to as "OWNER"), and the CITY OF POWAY, a municipal corporation (hereinafter referred to as "CITY"). WHEREAS, this Agreement is required as a condition of approval of Resolution No. 20-091 for Tentative Tract Map 20-003 and Development Review 20-002, specifically to address Sections 7G(9), 7(1)(9), 7(1)(13), 7(K)(1 }, 7(K)(5), 7(K)(6}, 7(M)(5) and 7(M)(5) of the conditions of approval; and WHEREAS, OWNER wishes to provide for the maintenance and repair of those certain PRIVATE FACILITIES described as: private streets, curbs, gutters, sidewalks , walkways, curb stops, drainage structures, ditches, storm drain, stormwater treatment devices, stormwater conveyance appurtenances, sewer (routine cleanings shall be performed), fire water & associated appurtenances, domestic water & associated appurtenances, irrigation, landscaping, fencing, walls, lighting, signs, markers, striping, site amenities (including but not limited to dog park, trash receptacles, kid play features, seating areas, water features, drinking fountains, art pieces), and building structures as depicted on the building, grading and landscape plans (821-2153, G21- 0007, G21-0016 and LP21-015) hereinafter referred to as the "PRIVATE FACILITIES"); and WHEREAS, OWNER is the owner of certain real property located in the City of Poway, California, more particularly described in Exhibit "A", hereto (hereinafter referred to as the "PROPERTY"), which is being subdivided and developed as FAIRFIELD, 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, it is the mutual intention of the parties that this Agreement constitute a covenant running with the land . NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS: https://gs.secure-recording.com/Batch/Confirmation/15393869 1/2 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 2.3"'~ day of SeytcM \?er'" , 2022.., is entered into between Fairfield Poway LLC, (hereinafter referred to as "OWNER"), and the CITY OF POWAY, a municipal corporation (hereinafter referred to as "CITY"). WHEREAS, this Agreement is required as a condition of approval of Resolution No. 20-091 for Tentative Tract Map 20-003 and Development Review 20-002, specifically to address Sections 7G(9), 7(1)(9), 7(1)(13), 7(K)(1 ), 7(K)(5), 7(K)(6), 7(M)(5) and 7(M)(5) of the conditions of approval; and WHEREAS, OWNER wishes to provide for the maintenance and repair of those certain PRIVATE FACILITIES described as: private streets, curbs, gutters, sidewalks, walkways, curb stops, drainage structures, ditches, storm drain, stormwater treatment devices, stormwater conveyance appurtenances, sewer (routine cleanings shall be performed), fire water & associated appurtenances, domestic water & associated appurtenances, irrigation, landscaping, fencing, walls, lighting, signs, markers, striping, site amenities (including but not limited to dog park, trash receptacles, kid play features, seating areas, water features, drinking fountains, art pieces), and building structures as depicted on the building, grading and landscape plans (B21-2153, G21- 0007, G21-0016 and LP21-015) hereinafter referred to as the "PRIVATE FACILITIES"); and WHEREAS, OWNER is the owner of certain real property located in the City of Poway, California, more particularly described in Exhibit "A", hereto (hereinafter referred to as the "PROPERTY"), which is being subdivided and developed as FAIRFIELD, 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, it is the mutual intention of the parties that this Agreement constitute a covenant running with the land. NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS: 1. The property benefited by this Agreement is the PROPERTY . 2 . The cost of maintaining the PRIVATE FACILITIES shall be paid by the OWNER. 3. Repairs and maintenance under this Agreement shall include work as is reasonably necessary or proper to repair and preserve the PRIVATE FACILITIES . 4 . The obligation of the OWNER to repair and maintain the PRIVATE FACILITIES within the PROPERTY, as herein set forth, shall commence upon completion of and approval by the CITY of the PRIVATE FACILITIES . 5. The OWNER shall at all times maintain liability insurance covering its activities with regard to use and maintenance of the PRIVATE FACILITIES . 6. The OWNER 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 the 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 ar ise 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. 7. 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 OWNER 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 OWNER agrees 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 OWNER The OWNER shall reimburse the CITY for all reasonable costs incurred by the CITY in connection with such maintenance activities. If the OWNER 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. 8. If the CITY elects to make necessary repairs in accordance with Paragraph 7 above, said work shall be without warranty . Said repair shall be accepted "as is" by the OWNER without any warranty of workmanship. All repairs completed by the CITY and/or CITY PARTIES shall be completed by City staff or licensed professionals and repairs shall be of good quality and workmanship . 9. The foregoing covenants shall run with the land and shall be deemed to be for the benefit of the OWNER 10. It is understood and agreed that the covenants herein contained shall be binding on the heirs, executors, administrators, successors and assigns of the OWNER. 11. 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. 12 . The terms of this Agreement may be amended in writing by the OWNER with consent of the CITY. 13 . 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. FAIRFIELD POWAY LLC, a Delaware limited liability company By: FRH CC MANAGER LLC, a Delawar · · · its Non- By: Name: Title : -----"'---''-'------- (signature must be notarized) 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 September 21, 2022 before me, Shannyn Daye Henkel, Notary Public, (insert name and title of the officer) personally appeared _E_d_M_c_C_o_y _____________________ _ 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. (Seal) SHAMHYM 0.1.YE HENKEL ''• Notary Public -California Son o;ep County Commission # 2312378 My Comm. EllPires Mo• 11, 2023 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 Cc to bet(, 4 1 '2..:D 2. before me, ___ Y_v_o_n_n_e_M_a_n_n_io_n~, _N_o_t_a~ry~P_u_b_li_c ____ _ Date Here Insert Name and Title of the Officer personally appeared ______ R_o_b_e_rt_J_. _M_a_n_is ________________ _ 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. t············~ ' ~ YVONNE MANNION : t ' Notary Public -California z ~ · San Dieso County ~ z Commission # 2363699 - My Comm . Expires Jul 1, 2025 Place Notary Seal Above I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature -,L-""'f.--...;•-1--U;:_'~;:_-l..:..t·-....:~_'=---=-'\._,-=-..:..\a_Y\A....c:....._i_,;_..J_' ____ _ Signature of Notary Public ----------------OPTIONAL---------------- Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Private Facilities maintenance Agreement G21-0016 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: _________ _ ~~~'%~~~'!'iK-~'%~~~ ©2016 National Notary Association· www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 CITYOFPOWAY: ~ Ro~·~ Date: _h~!B6~Z, 'l-_ Director of Development Services (signature must be notarized) APPROVED AS TO FORM: Office of the c:ty Jtt°Jt! ~ dk VVf ---- Alan Fenstermacher City Attorney Attachments 1. Exhibit A APPROVED AS TO CONTENT: EXHIBIT A LEGAL 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 88°03'51" EAST, 157.92 FEET; THENCE LEAVING SAID NORTHERLY LINE AND SAID CENTER LINE SOUTH 01°19'20" WEST, 197.03 FEET; THENCE SOUTH 88°03'51" EAST, 82.10 FEET; THENCE SOUTH 01°19'20" WEST, 16.00 FEET; THENCE SOUTH 88°03'51" 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 °19'20" WEST, 197.97 FEET TO THE SOUTHEAST CORNER; NORTH 88°03'51" WEST, 350.02 FEET TO THE SOUTHWEST CORNER AND NORTH 01 °19'20" 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.