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Public Access Agreement 2023-0052874RECORDING REQUESTED BY: CITY OF POWAY WHEN RECORDED MAIL TO: CITY CLERK CITY OF POWAY P O BOX 789 POWAY CA 92074-0789 DOC# 2023-005287 4 1111111111111111111111111111111111111111111111111111111111111111111111 Mar 01, 2023 02:43 PM OFFICIAL RECORDS JORDAN Z MARKS , SAN DIEGO COUNTY RECORDER FEES $0 .00 (S82 Atkins $0.00) PAGES 16 SPACE ABOVE THIS LINE FOR RECORDER'S USE PUBLIC ACCESS AGREEMENT FOR FAIRFIELD POWAY ROAD MIXED USE THIS PUBLIC ACCESS AGREEMENT FOR FAIRFIELD POWAY ROAD MIXED USE ("Agreement") is made as of [-e..b,,.u,..--7 f r<t , 2023, by and between FAIRFIELD POWAY LLC, a Delaware limited liability company ("Owner") and CITY OF POWAY (CITY), with reference to the facts set forth in the Recitals below. RECITALS A. Owner is the owner of certain real property located in the City of Poway, County of San Diego, State of California, Assessor's Parcel Nos. 317-490-55-00 and 317- 490-69-00, located at 12845 and 12941 Poway Road ("Property"), which is more particularly described on Exhibit "A" attached hereto. B. The Property consists of two Lots as shown on Tract Map No. 20-003. C. The following City entitlements affect the development of the Property as a mixed-use project (the "Project") and the conditions of approval included in City Council Resolution No. 20-091, imposed by the City on the Project in connection with such entitlements, are referred to collectively as the "Project Conditions": 1. Tentative Tract Map No. 20-003; and 2. Development Plan Review No. 20-002; D. In connection with its development of the Property and the Project Conditions,. Owner intends to construct and establish pubic access as generally shown on "Exhibit B" ("Site Plan"). More specifically, these areas include (i) certain plazas located along the Project's Poway Road frontage as shown on, Exhibit "C" ("Public Plazas") for public pedestrian access, (ii) a dog park located along the Project's Poway Road frontage as shown on Exhibit "D" attached hereto ("Dog Park") for public pedestrian access, (iii) a sidewalk located on the Property directly abutting the sidewalk on Poway Road as shown on Exhibit "E" attached hereto ("Sidewalk"), (iv) public parking spaces ("Public Parking") as shown on Exhibit "F" attached hereto, (v) the internal street ("Internal Street") for public access as shown on Exhibit "G" attached 4812-8322-4062.2 hereto, and (vi) the drive aisles ("Drive Aisles") throughout the project site as shown on Exhibit "H" attached hereto. AGREEMENT NOW, THEREFORE, Owner hereby agrees that the Property shall be held, sold, conveyed, mortgaged, encumbered, leased, rented, used, occupied, and improved, subject to the Public Access which shall run with the Property. ARTICLE I DEFINITIONS 1.1 Definitions. The following terms when appearing in this Declaration shall have the meanings set forth below: (a) (b) (c) "City" shall mean the City of Poway. "County" shall mean the County of San Diego. "Drive Aisles" shall mean the travel ways used to access the public parking spaces. (d) "Internal Street" shall mean the access easement connecting the parcels to the west and east of the project site. (e) "Lot" shall mean the lot as shown on the Tract Map. (f) "Owner" shall mean any Person who or which is the record owner of fee simple title to the entire Lot. (g) "Permittees" shall mean members of the general public and any of Owner's partners, members, shareholders, agents, employees, officers, directors, managers, tenants, contractors, customers, licensees and invitees and their respective successors and assigns. (h) .. "Person" shall include all individuals, partnerships, firms, associations, trusts, corporations and any other form of business entity, and the singular shall include the plural. (i) "Public Access Areas" shall mean the Public Plazas, Dog Park and Sidewalk as provided in Section 2.1 below. (j) "Public Parking" shall mean the uncovered parking spaces located throughout the Project site. -2- 4812-8322-4062.2 ARTICLE II PUBLIC ACCESS AREAS 2.1 Grant of Public Access. (a) Public Plazas. Owner hereby grants and establishes mutual, non- exclusive access rights in, on, over, through and across the Public Plazas for the benefit of the public for pedestrian access, subject to the terms and conditions set forth herein. The Public Plaza may be used by the public for pedestrian access, related ingress and egress generally from sunrise to sunset (or other such hours as Owner deems reasonable, but in no event less than eight (8) hours daily). However, Owner shall retain the right to establish rules and regulations for those members of the public entering the Public Plazas, which shall be established by the Owner in its sole discretion and are subject to change by the Owner. (b) Dog Park. Owner hereby grants and establishes mutual, non- exclusive access rights in, on, over, through and across the Dog Park for the benefit of the public for pedestrian access, subject to the terms and conditions set forth herein. The Dog Park may be used by the public for pedestrian access, ingress and egress generally from sunrise to sunset. However, Owner shall retain the right to establish rules, regulations, and hours for those members of the public entering the Dog Park, which shall be established by the Owner in its sole discretion and are subject to change by the Owner. (c) Sidewalk Access. Owner hereby grants and establishes mutual, non-exclusive access rights in, on, over, through and across the Sidewalk for the benefit of the public, subject to the terms and conditions set forth herein. The Sidewalk may be used by the public for pedestrian travel, access, ingress and egress. (d) Public Parking. Owner hereby grants and establishes mutual, non- exclusive access rights in, on, over, through and across the Public Parking spaces for the benefit of the public, subject to the terms and conditions set forth herein. The Public Parking spaces may be used by the public for parking vehicles to patronize the commercial businesses and use of the Public Plazas and Dog Park on the Property. However, Owner shall retain the right to establish rules, regulations, and hours for those members of the public utilizing parking on the Property, which shall be established by the Owner in its sole discretion and are subject to change by the Owner. (e) Internal Street. Owner hereby grants and establishes mutual, non- exclusive access rights in, on, over, through and across the Internal Street for the benefit of the public, subject to the terms and conditions set forth herein. The Internal Street may be used for pedestrian and vehicular access to adjacent properties to the west and east upon completion of the Internal Street. (f) Drive Aisles. Owner hereby grants and establishes mutual, non- exclusive access rights in, on, over, through and across the Drive Aisles for the benefit of the public, subject the terms and conditions set forth herein. The Drive Aisles may be -3- 4812-8322-4062.2 used to for pedestrian and vehicular access between the Public Parking and the commercial businesses, Public Plazas, and Dog Park on the Property 2.2 Temporary Closure; Nature of Access. Owner may (i) make such improvements to and/or in the Public Access Areas as Owner elects to make from time to time provided that the same do not materially impair access by the public to such Public Access Areas, and (ii) restrict access to and/or partially or fully close the Public Access Areas from time to time as Owner reasonable determines necessary in connection with maintenance, repairs and/or replacements thereto and/or therein. Except as otherwise provided in this Declaration, access and other rights and restrictions created under this Article 2 (i) are appurtenant, non-exclusive and irrevocable, (ii) are made for the direct, mutual, and reciprocal benefit of the public and the Owner, (iii) run with the land and bind every Person having a fee, leasehold, or other right, title or interest in the Property, or any portion thereof, at any time and from time to time to the extent that the Property is affected or bound by this Declaration, and (vi) shall be binding upon and inure to the benefit of any heirs, executors, administrators, successors and assigns of each Owner. ARTICLE Ill GENERAL PROVISIONS 3.1 Duration; No Public Dedication. The access rights granted pursuant to this Agreement shall run with and bind the Property while the Project exists on the Property and shall automatically terminate at such time as the Property is redeveloped for a different project or use that is approved by the City, as evidenced by the City's issuance of the necessary discretionary permits and approvals for such redevelopment. Notwithstanding anything to the contrary contained herein, this Agreement and the rights granted hereunder do not constitute and shall in no event be deemed to be a dedication of all or any portion of the Property to the public, and, other than the access rights specifically granted herein, the public shall have no rights in, to or with respect to the Property or the Project. 3.2 Amendments. Amendments to this Agreement may be made by the Owner with written approval from the City. Such City approval shall not be unreasonably withheld. [signature(s) on following page] -4- 4812-8322-4062.2 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. OWNER: FAIRFIELD POWAY LLC, a Delaware limited liability company By: FRH CC MANAGER LLC, a Delaware limit · · · its Non- By: ---,;-~,,,,...-,~---t----- Date:----'-.:::...J_=._.JY...::::.-+----,J Name: Title: S' \['f' CITY OF POWAY Dale 1/n /2o ----,--- Approved as to Form: Office of the City Attorney 2(7/23 Alan Fenstermacher, City Attorney Date -5- 4812-8322-4062.2 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 December 7, 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. 1········••==~ • SHAMNYN DAYE HENKEL ~ a• Notary P~blic -California z ~ ~ • San Diego County ~ • • Commission # 2312378 - '"t.,~•' My Comm, Ex;:,ires Nov 11 . 2023 (Seal) 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 , )canvt.•,'lyJ ,25, .::lo.2.3 before me, ___ Y_v_o_n_ne_M_a_n_n_i_o_n~, _N_o_ta_ry_P_u_b_lic _____ _ Dau! 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. ······--~ YVONNE MANNION otary Public · California z San Diego County ll: ommission # 2363699 - xpires Jul 1, 2025 Place Notary Seal 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. Signature_~..+..a.-~1_t_t,(l__. __ ~1',~./c!/Vl. __ ;_J-,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: Public Access Agreement for Fairfield Poway Road Mixed Use 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: _________ _ ?,¼. ©2016 National Notary Association· www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 Exhibit A Legal Description LOT 1 OF CITY OF POWAY TRACT NO. 20-003, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STA TE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 16536, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO, DECEMBER 01, 2022. 4812-8322-4062.2 EXHIBIT A -1- EXHIBITB SITE PLAN =-- :sug 1 = ~ ~,2~,.~--~---- ~~ ~•~o t} " ~---r----1·"'---=---,_. -----' -l . ~}-•· §ii---~ -,..,,L-,..------(10-~ H. c,o~...:..,_---;-::==...:.--:-~,._: ~~ / --~ . =-~=.f=~.,.fih-. __ !'_::_..~~/.'d ,i, 4812-8322-4062 . l EXHIBIT C PUBLIC PLAZAS P O W A Y R O A D ~~+~\~ . -·>· --., ~~;'.:~:. :~~•;·::;',;~;-~. -....,,.-, '~. ~:::}~/ I' .. ·. :~ ~--.· _ __ ._, E2i fl~C11.i( 4812-8322-4062. l . . ·• . 11 4812-8322-4062.2 EXHIBIT C PUBLIC PLAZAS Powav Road I ."•••I •• I .• .. ···,· . .. ·,:·~:.-··· :.,: .. : -~ -~~-~-~---~_\\ . . · ...... • .. '• :· ,.:·.·.·· .. ··, . ·.•!",: .. Public Plaza 2 I •1 •.•:, • ,_:_ .. •.'-""': -· ... · ... :. ····•: ... _.,. -: . },'' ...... • I ~. ,: 1 ... ., ',': •• ·.•. . ·-: I • • "'-' • ,"I, .. -·:·.· .. -... · . ._ -. '• . . ·, ... : ·: .. .• -. '• ':· j •.• :-=: .. . · .. ·-·· .•,· -\. : .... .... ·. -. . . -:-... -· ·-· .. -.. ... .. -·-..... ·· • I •• .1 •.,,I • . ••,• .· .:,.,· .... . 'I •• , .. ,•• • • ~• • -... ., .. ·. :::.: •,' . ,. •. ·: •.-·. :·· · .. ... .... . . .. •.:· -.. .... . .: . .. ·:-.. ,·.•· :-··· .... . ,. ··•. :, .. :•:- -I • • .. .-... · . •. •,• •• 'I ." ... "I,.,••'::•• •, -,I . ·-. ···-. ·, -'• •,• •,. ,·, :: ·r.;:-... •· . . . .. ._ ........ .,; ,, ... : ·." ... :, • • •• , •,• ,,,1 .;: ·I ,,·· . ... . EXHIBITD DOG PARK Poway Ro ,ad .. ' ~ --:.:~~\-•-'!:-:-:-;I' . e"'t:r( or .v i 11 1,,,,••;, • ~_'I --=----"" r--'• • ' L..,_,..--,;, ··...;..-•-, ' 4812-8322-4062.2 EXHIBIT E SIDEWALK -------(10' ~~~~~~~~%~Pf#.7#r.~~~-~-;::~~ : D ow--~ -4"DW----4 "DW ,.. N l , (10"55}---,-· =~~.~-(10"5S}:= · --,--, ---=====-·. -(1Q"5c;}-;-.:....::;: Poway Road 7 4812-8322-4062.2 EXHIBIT F PARKING ---~ --==-------------(!~'O N)----(1C '"CW}-- .-~1}.. ,,_______ ~t-~==--·--..;___ -~··•-~•--------(H>'"SS . , ' ~~-.. ,__..--' -·.1--'.-- ~9. ~ ~ ;,, c:.....,_,,,, ,...,. . ~es 4812-8322-4062.2 EXHIBITG INTERNAL STREET l ·~~E~ I ~ I I '., . +~:j ---~· rr.~ r.J F· . ' ---1 -2- 4812-8322-4062.2 EXHIBITH DRIVE AISLE ~Jl "'---1,~ ~-----[111 l,.,,,.-11/J . , l,"7 1J'. I .,.. ';----, ---~-~--~f-. -------11u-·~--•---. .-~!------. ~ ~-.~~ . J-·, ---::_~~T.-~!-=-,. Poway Ro ild 1,0·= -3- 4812-8322-4062 .2