Private Facilities Maintenance Agreement 2022-0453478RECORDING REQUESTED BY:
CITY OF POWAY
AND WHEN RECORDED MAIL TO:
CITY CLERK
CITY OF POWAY
PO BOX 789
POWAY, CA 92074
DOC# 2022-0453478
111111111111 lllll 1111111111111111111111111111111111111111 IIIII IIII IIII
Nov 30, 2022 11 :49 AM
OFFICIAL RECORDS
Ernest J. Dronenburg, Jr.,
SAN DIEGO COUNTY RECORDER
FEES: $32.00 (SB2 Atkins: $0.00)
PAGES: 7
(THIS SPACE FOR RECORDER'S USE)
PRIVATE FACILITIES MAINTENANCE AGREEMENT
This PRIVATE FACILITIES MAINTENANCE AGREEMENT ("Agreement"), dated for
reference purposes as the 1.-C/ day of AJIJvetnht:-C , 20.z:L is entered
into between LENNAR HOMES OF CALIFORNIA, INC., a California corporation, (hereinafter
referred to as "DEVELOPER"), THE FARM IN POWAY COMMUNITY ASSOCIATION,
(hereinafter referred to as "ASSOCIATION"), and the CITY OF POWAY, a municipal corporation
(hereinafter referred to as "CITY"), for the benefit of future homeowners (hereinafter referred to
as "HOMEOWNERS." which shall include the DEVELOPER to the extent the DEVELOPER
retains any ownership interest in any lot or lots within the PROPERTY (defined below)) who will
use the PRIVATE FACILITIES (defined below).
WHEREAS, this Agreement is required as a condition of approval of Resolution No. 20-
052 for Tentative Tract Map 19-002, specifically to address Sections 8(1)(10), 8(I)(17)(a)(i), and
8(J)(47) of the conditions of approval, and Development Review 19-001; and
WHEREAS, ASSOCIATION wishes to provide for the maintenance and repair of those
certain PRIVATE FACILITIES described as: private streets, curbs, gutters, pavers, stamped
and/or stained concrete, sidewalks, walkways, crosswalks, trails (including all trails with public
access easements as shown on Map No. 16478 and 16479, filed in the office of the County
Recorder of San Diego County, October 27, 2021), bollards, 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, shade structure(s), sheds, fencing, walls,
lighting, signs, markers, striping, site amenities (including but not limited to dog park, trash,
recycling and compost receptacles and bins, kid play features, site furniture, seating areas,
drinking fountains, mailboxes and community gardens), and building structures, as depicted on
the building, grading and landscape plans (G21-0001, G21-0014, LP22-002, LP22-003, and
LP22-0009) 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 through 137, 145 through 192, A
through 0, and R through W of Map No. 16478 & Lots 138 through 144 and A and B of Map
No. 16479 , in the County of San Diego, State of California, filed in the office of the County
Recorder of San Diego County, October 27, 2021 (hereinafter referred to as the "PROPERTY"),
which has been subdivided and developed as THE FARM IN POWAY ("COMMUNITY") that will
use and enjoy the benefit of such PRIVATE FACILITIES; and
SMRH :4859-4710-4063.3 -1-
112122 0JAM-046527
RECORDING REQUESTED BY:
CITY OF POWAY
AND WHEN RECORDED MAIL TO:
CITY CLERK
CITY OF POWAY
PO BOX 789
POWAY, CA 92074
(THIS SPACE FOR RECORDER'S USE)
PRIVATE FACILITIES MAINTENANCE AGREEMENT
This PRIVATE FACILITIES MAINTENANCE AGREEMENT ("Agreement"), dated for
reference purposes as the 2-CJ day of IJIJvetnbt:.C , 20~ is entered
into between LENNAR HOMES OF CALIFORNIA, INC., a California corporation, (hereinafter
referred to as "DEVELOPER"), THE FARM IN POWAY COMMUNITY ASSOCIATION,
(hereinafter referred to as "ASSOCIATION"), and the CITY OF POWAY, a municipal corporation
(hereinafter referred to as "CITY"), for the benefit of future homeowners (hereinafter referred to
as "HOMEOWNERS," which shall include the DEVELOPER to the extent the DEVELOPER
retains any ownership interest in any lot or lots within the PROPERTY (defined below)) who will
use the PRIVATE FACILITIES (defined below).
WHEREAS, this Agreement is required as a condition of approval of Resolution No. 20-
052 for Tentative Tract Map 19-002, specifically to address Sections 8(1)(10), 8(I)(17)(a)(i), and
8(J)(47) of the conditions of approval, and Development Review 19-001; and
WHEREAS, ASSOCIATION wishes to provide for the maintenance and repair of those
certain PRIVATE FACILITIES described as: private streets, curbs, gutters, pavers, stamped
and/or stained concrete, sidewalks, walkways, crosswalks, trails (including all trails with public
access easements as shown on Map No. 16478 and 16479, filed in the office of the County
Recorder of San Diego County, October 27, 2021), bollards, 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, shade structure(s), sheds, fencing, walls,
lighting, signs, markers, striping, site amenities (including but not limited to dog park, trash,
recycling and compost receptacles and bins, kid play features, site furniture, seating areas,
drinking fountains, mailboxes and community gardens), and building structures, as depicted on
the building, grading and landscape plans (G21-0001, G21-0014, LP22-002, LP22-003, and
LP22-0009) 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 through 137, 145 through 192, A
through 0, and R through W of Map No. 16478 & Lots 138 through 144 and A and B of Map
No. 16479 , in the County of San Diego, State of California, filed in the office of the County
Recorder of San Diego County, October 27, 2021 (hereinafter referred to as the "PROPERTY"),
which has been subdivided and developed as THE FARM IN POWAY ("COMMUNITY") that will
use and enjoy the benefit of such PRIVATE FACILITIES; and
SMRH:4859-4710-4063.3 -1-
112122 0JAM-046527
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, of which
the HOMEOWNERS will be members, for the purposes of maintaining, repairing, and replacing
the common areas within the PROPERTY, including, without limitation, the PRIVATE
FACILITIES. As each phase of the COMMUNITY becomes subject to the jurisdiction of the
ASSOCIATION pursuant to the Declaration of Covenants, Conditions and Restrictions of The
Farm in Poway, as may be amended and supplemented (collectively "Declaration") recorded
against the COMMUNITY by DEVELOPER, the ASSOCIATION shall assume all maintenance
obligations regarding the PRIVATE FACILITIES within each phase of the COMMUNITY; and
WHEREAS, it is the mutual intention of the parties that this Agreement constitute
a covenant running with the land, binding upon each successive HOMEOWNER of all or any
portion of the PROPERTY.
1.
2.
3 .
4.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
The property benefited by this Agreement is the PROPERTY. The present and
successive HOMEOWNERS of all or any portion of the PROPERTY are expressly
bound hereby for the benefit of the PROPERTY.
The cost of maintaining the PRIVATE FACILITIES shall be divided equally among
the subdivided parcels created in the COMMUNITY and paid by each HOMEOWNER 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,
The repairs and maintenance under this Agreement shall include work as is reasonably
necessary or proper to repair and preserve the PRIVATE FACILITIES.
The obligation of the ASSOCIATION to repair and maintain the PRIVATE FACILITIES
within each phase of development of the COMMUNITY, as herein set forth, shall
commence upon the occurrence of either of the following events: (a) when the PRIVATE
FACILITIES have been completed and approved by the CITY, or (b) such phase of the
COMMUNITY has become subject to the jurisdiction of the ASSOCIATION pursuant to
the Declaration. DEVELOPER (and/or any successor developer to which any portion of
the COMMUNITY is conveyed prior to annexation pursuant to the Declaration) shall
maintain the PRIVATE FACILITIES prior to the occurrence of either of the events
described in items (a) and (b) preceding.
5. After the PROPERTY has become subject 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 HOMEOWNER is the party causing the need for such extraordinary
repair. If any such extraordinary repair is caused by a HOMEOWNER, the
ASSOCIATION shall assess and collect a Compliance Assessment (as defined in the
SMRH:4859-4710-4063.3 -2-
112122 OJAM-046527
Declaration) against such HOMEOWNER 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 HOMEOWNER. The
repair shall be such as to restore the PRIVATE FACILITIES to the condition existing
prior to said damage.
6. Should any HOMEOWNER 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 HOMEOWNER, 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
HOMEOWNERS and the ASSOCIATION agree that the CITY may make all needed
repairs to the PRIVATE FACILITIES to meet the standards set forth in Paragraph 3 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.
1 O. 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
HOMEOWNERS 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
SMRH:4859-4710-4063.3 -3-
112122 0JAM-046527
benefit of the PROPERTY of each of the HOMEOWNERS 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,
HOMEOWNERS 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: L
Vice President
(signature must be notarized)
ASSOCIATION: THE FARM IN POWAY COMMUNITY ASSOCIATION,
a Califo ll!T'ri,t.ia1Fnutual benefit corporation
Date:
By ~ Date:
Name: fv')rCnc-.e{ lYJe,S7)::&
Title: ....:...V.....,.P'-. _______ _
SMRH :4859-4710-4063.3
112122
(signatures must be notarized)
-4-
0JAM-046527
Date:
(signature must be notarized)
APPROVED AS TO FORM:
Office of the City Attorney
M ~ ~,, AJ,.,, fe,J\s+c.rtt1~e.r
Alan FellStacher
City Attorney
SMRH:4859-4710-4063.3
112122
-5-
APPROVED AS TO CONTENT:
Engineering Division
Acting City Engineer
OJAM-046527
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing 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 5A,..A ~1-a:-n?
On /V4{ ;!--°7 "Z<J2-2-. before me, Richard R. Keller , Notary .
Public , personally appeared lh:cx~dl--l fo SMNc::fL j Cf}fJ,JS7J,,vfl U/(lN-tlL-~ l11 ,c...11Ac:.,___ "'16kJni>
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.
RICHARD R. KELLER
Notary Public -California ~
San Diego County ,,.
Commission# 2273723
My Comm. Expires Jan 21, 2023
Richard R. Keller (SEAL)
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 Caljfomia
County of :-=> Cf 11 Pt f1ltO
(/
On :J-,'?yA-h / !;7-61,?-A before me,/__a__v /2/f-
(insert name and title of the officer)
personally appeared Mliec-± -::5. /J1o/Z I 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.
l __ / .. ~•-·. . LAURA A. STEWART l
1i: .: · -,. Commission No . 2282980 >
~ NOTARY PUBLIC -CALIFORNIA ~
~ · · SAN DIEGO COUNTY ~ ~ . i eom .......... .., •• "'23 l
Signatu ~e a <PY~ (Seal) .
(/