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Public Facilities Maintenance Agreement 2022-0453477RECORDING REQUESTED BY: CITY OF POWAY WHEN RECORDED MAIL TO: CITY CLERK CITY OF POWAY P O BOX 789 POWAY, CA 92074 DOC# 2022-0453477 11111111111111 11111111 IT 111111111111111111 II III111IN Nov 30, 2022 11:49 AM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER FEES: $56.00 (SB2 Atkins: $0.00) PAGES: 15 SPACE ABOVE THIS LINE FOR RECORDER'S USE PUBLIC FACILITIES MAINTENANCE AGREEMENT THE FARM IN POWAY This PUBLIC FACILITIES MAINTENANCE AGREEMENT ("Agreement") for the maintenance of certain PUBLIC FACILITIES described as: stamped and/or stained concrete, pavers, sidewalks, walkways, crosswalks, trails, bollards, drainage structures, ditches, storm drain, stormwater treatment devices, stormwater conveyance appurtenances, irrigation, landscaping, lighting, signs, striping, ADA transitions, and bus stop pad, seating and signage as depicted on the street improvement, grading and landscape plans (STI21-001, G21-0001, G21-0014, LP22-003, and LP22-0009) hereinafter referred to as the "PUBLIC FACILITIES") along sections of the public right-of-way known as Espola Road, Saint Andrews Drive, Boca Raton Lane, Tam O'Shanter Drive, and Cloudcroft Court, 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"). The PUBLIC FACILITIES adjacent to public streets to be maintained by the Association pursuant to this Agreement are depicted in Exhibit "A." WHEREAS, DEVELOPER 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 as part of a planned development project as defined by California Civil Code Section 4175, pursuant Resolution No. 20-052 of the City Council of the City of Poway approving Tentative Tract Map 19-002 and Development Review 19-001. The project consists of the adoption of a specific plan, the subdivision of 117 acres of land, and the construction of 160 homes with recreational, agricultural, and commercial amenities with related site and public street improvements at the decommissioned StoneRidge Country Club as shown in the Tentative Tract Map. WHEREAS, DEVELOPER has submitted to the CITY street improvement, grading and landscape plans (STI21-001, G21-0001, G21-0014, LP22-003, and LP22-0009) which includes the PUBLIC FACILITIES to be maintained pursuant to this Agreement. WHEREAS, the PUBLIC FACILITIES will be maintained by the ASSOCIATION. It is the purpose of this Agreement to assure that the PUBLIC FACILITIES are maintained, by creating obligations that are enforceable against the ASSOCIATION. 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 set forth herein, IT IS HEREBY AGREED AS Page 1 RECORDING REQUESTED BY: CITY OF POWAY WHEN RECORDED MAIL TO: CITY CLERK CITY OF POWAY P O BOX 789 POWAY, CA 92074 SPACE ABOVE THIS LINE FOR RECORDER'S USE PUBLIC FACILITIES MAINTENANCE AGREEMENT THE FARM IN POWAY This PUBLIC FACILITIES MAINTENANCE AGREEMENT ("Agreement") for the maintenance of certain PUBLIC FACILITIES described as: stamped and/or stained concrete, pavers, sidewalks, walkways, crosswalks, trails, bollards, drainage structures, ditches, storm drain, stormwater treatment devices, stormwater conveyance appurtenances, irrigation, landscaping, lighting, signs, striping, ADA transitions, and bus stop pad, seating and signage as depicted on the street improvement, grading and landscape plans (STI21-001, G21-0001, G21-0014, LP22-003, and LP22-0009) hereinafter referred to as the "PUBLIC FACILITIES") along sections of the public right-of-way known as Espola Road, Saint Andrews Drive, Boca Raton Lane, Tam O'Shanter Drive, and Cloudcroft Court, 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"). The PUBLIC FACILITIES adjacent to public streets to be maintained by the Association pursuant to this Agreement are depicted in Exhibit "A." WHEREAS, DEVELOPER 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 as part of a planned development project as defined by California Civil Code Section 4175, pursuant Resolution No. 20-052 of the City Council of the City of Poway approving Tentative Tract Map 19-002 and Development Review 19-001. The project consists of the adoption of a specific plan, the subdivision of 117 acres of land, and the construction of 160 homes with recreational, agricultural, and commercial amenities with related site and public street improvements at the decommissioned StoneRidge Country Club as shown in the Tentative Tract Map. WHEREAS, DEVELOPER has submitted to the CITY street improvement, grading and landscape plans (ST121-001, G21-0001, G21-0014, LP22-003, and LP22-0009) which includes the PUBLIC FACILITIES to be maintained pursuant to this Agreement. WHEREAS, the PUBLIC FACILITIES will be maintained by the ASSOCIATION. It is the purpose of this Agreement to assure that the PUBLIC FACILITIES are maintained, by creating obligations that are enforceable against the ASSOCIATION. 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 set forth herein, IT IS HEREBY AGREED AS Page 1 FOLLOWS: PUBLIC FACILITIES Maintenance Agreement. ASSOCIATION shall comply in all respects with the requirements of the approved plans (STI21-001, G21-0001, G21-0014, LP22-003, and LP22-0009) 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 PUBLIC FACILITIES, without request or demand from CITY or any other agency. 2. 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 the MAINTENANCE ACTIVITIES if, in the CITY's sole judgment, ASSOCIATION has failed to perform the same. 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 ASSOCIATION 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 ASSOCIATION and said work shall be without warranty or representation by CITY as to safety or effectiveness, shall be deemed to be accepted by the ASSOCIATION "as is", and shall be covered by ASSOCIATION indemnity provisions below. If CITY performs any of the MAINTENANCE ACTIVITIES, after CITY has demanded that ASSOCIATION perform the MAINTENANCE ACTIVITIES and the ASSOCIATION has failed to do so within a reasonable time stated in the CITY's demand, then ASSOCIATION shall pay all of CITY's costs incurred in performing the MAINTENANCE ACTIVITIES, plus an administrative fee. The ASSOCIATION's obligation to pay CITY's costs of performing MAINTENANCE ACTIVITIES is a continuing obligation. If ASSOICATION 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 the ASSOCIATION 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 Page 2 (hereinafter collectively referred to as "CLAIMS"), related to this Agreement and arising either directly or indirectly from any act, error, omission or negligence of ASSOCIATION, 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. ASSOCIATION 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, administrators, successors and assigns of ASSOCIATION 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. ASSOCIATION'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 ASSOCIATION of or otherwise affect the ASSOCIATION's responsibilities for maintenance of PUBLIC FACILITIES 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 ASSOCIATION 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 the ASSOCIATION. 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 will assure the ongoing maintenance of the PUBLIC FACILITIES 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. ASSOCIATION 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. Page 3 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. IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth hereinafter. DE LOP LENNAR HOMES OF CALIFORNIA, LLC, a California limited liability company B Date: it Name: Title: Vice President ASSOCIATION: THE FARM IN POWAY COMMUNITY ASSOCIATION, a California nonprofit mutual be-mefit corDBration By: Nar Titl( Name: ftilae,] yr CITY OF, POWAY: By: J Robert J. Manis- Director of Development APPROVED AS TO FORM: Office of the City Attorney Date: o / 2 Date: VwA, Date: IIZV 92Z (signature must be notarized) Alan FensYkIrmacher, City Attorney Page 4 APPROVED AS TO CONTENT: Engineering Division Trac each, P.E. Acting City Engineer 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 off �> e6e_' On AkW 2) 2&Z-Z before me, Richard R. Keller , Notary Public, personally appeared &x-Z&,r)go_ �Lrsflvr, cfiY'�►��ih C ttiu s A5y�'" 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. WITNESS my hand and official seal. Richard R. Keller s RICHARD R. KELLER Notary Public - California t s:. San Diego County > Commission p 2273723 My Comm. Expires Jan 21 2023 (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 California County of �,La On�� /l-�%l� / ram'- before me,t"/r (insert name and title of the officer) , ' d11C < personally appearedhr� f Y�G/1% 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 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. Signatu e (Seal) LAURA A. STEWART Commission No. 2282980 z NOTARY PUBLIC - CALIFORNIA SAN DIEGO COUNTY Commission Expires April 9, 2023 EXHIBIT "A" VALLE \ I-RDL -)RIVE PER T%l ? N77 f r Aaww "" -: a O \ ' _ ((DD a _ cLm n s �• - 'IT:iRIrY C9R. Ip q jalM Qi s '1•{��1 xowC po5-s R7 sDlw Y 16 � w[ � 11 •t•M3� to ri pw(1Ms r I ./ .Ic s(wR POP W to 7 YYR --m AIO Amm fur x a b � - y -K ft ' I'AW42 @ 1Ru67C.M. F" 1 yZ/, ,rr Y.3.TY AYN6 AR smw ()-32.w T. IOLI 10 K S r _- RC1pY(7 A(R XUC /)-bt1tC 11 x ` •1�'J 7`YCC mmW r 4r 'I „t wieGnw an ;rur "U.Lc—r �• cq 'CR OM MJTV AA" C(A =" 15-X b R tICmY}!D AC -"•Ott row Raacn A[R zrK p-mr..Ys f IE s fto a 1 i ro sE <tlw© 17-M,00 MATCHLIN17 zs SFE SHEET IS B Q_o IIQ� i3 Page 5 17. 91.01] SIATCNU\E su-SIIGIA i' I CA ; u I N rD I L 'i narr.a "n m=mfaa a aim rnu urwKan "&A. 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I EXHIBIT "B" LEGAL DESCRIPTION OF PROPERTY Real property in the City of Poway, County of San Diego, State of California, described as follows: LOTS 161 THROUGH 192, INCLUSIVE, LOTS A THROUGH 0, INCLUSIVE, AND LOTS R THROUGH W, INCLUSIVE, OF CITY OF POWAY TM 19-002 THE FARM UNIT 1, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 16478, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, OCTOBER 27, 2021; AND LOTS A AND B OF CITY OF POWAY TM 19-002 THE FARM UNIT 2, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 16479, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, OCTOBER 27, 2021. Page 13