Reciprocal Fire Protection Service Maintenance Agreement 2002-0848356
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, -~ Ii _ . DO~ 2002-0848356
J' RECORDING REQUESTED BY )
) OCT 02. 2002 8:07 AM
CITY OF POWAY )
) OFFICIAL RECORDS
AND WHEN RECORDED MAil TO' ) SAN DIEGO COUNTV RECORDER'S OFFICE
) GREGORY J. SMITH. COUNTY RECORDER
CITY CLERK ) FEES: 0.00
CITY OF POWAY )
POBOX 789 )
POWAY, CA 92074 )
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~ NO TRANSFER TAX DUE ) (This space for Recorder's use only)
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I fA'tk RECIPROCAL FIRE PROTECTION SERVICE
MAINTENANCE AGREEMENT
,THIS AGREEMENT for the maintenance and repair of certain joint use fire
protection service lines, the description/of which is set forth in Exhibit "A" attached
hereto and made a part hereof, is,ent~red into between the City of Poway (hereinafter
referred to as "City") and 0fI Sbripps Powav, LLC
(hereinafter referred to as "Developer"), for the benefit of future lot owners (hereinafter
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referred to as; "lot Owners") who will use the joint use fire protection service lines
(hereinafter referred to as "Service Lines"), which shall include the Developer to the
extent the Developer retains ownership interest in any lot or lots.
WHEREAS, this Agreement is required as a condition of approval by the City;
and
WHEREAS, DEVELOPER is the owner of certain real property (hereinafter
referred to as "Property") being developed as an office complex that will use and enjoy
the benefit of said Service Lines A complete legal description of said Property is
attached as Exhibit "B", and incorporated by reference, and
WHEREAS, it is the mutual desire of the parties hereto to establish a method for
the maintenance and repair of said Service Lines and for the apportionment of the
. expense of such maintenance and repair among existing and future lot Owners; and
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:"-\"" WHEREAS, the City shall be deemed a party hereto with the right but not the
right but not the obligation to enforce full compliance with the terms and conditions of
the Agreement; and
WHEREAS, it is the mutual intention of the parties that this Agreement constitute
a covenant running with the land, binding upon each successive lot Owner of all or any
portion of the property
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NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS
1 The Property is benefited by this Agreement, and present and successive
Lot Owners of all or any portion of the Property are expressly bound hereby for the
benefit of the land
2. The cost and expense of maintaining the Service Lines shall be divided
based on a pro-rata share per square foot of building among the Lot Owners and paid
by the Lot Owners or the heirs, assigns and successors in interest of each such owner
These maintenance agreements shall include fire service lines, fire department
connection, electrical service and associated appurtenances.
3 The repairs and maintenance to be performed under this Agreement shall
be limited to the following, unless the consent for additional work is agreed to by a
majority vote of the Lot Owners owning 100% of the number of parcels' reasonable and
normal maintenance work to adequately maintain said Service Lines
4 Repairs and required maintenance under this Agreement shall include, but
are not limited to, damage due to vandalism or normal wear & tear Inspections are
required by the Poway Fire Department, insurance company or other authorized
governmental agency
5 Any extraordinary repair required to correct damage to said Service Lines
that results from action taken or contractor for by parties hereto or their successors in
interest shall be paid for by the party taking action or party contracting for work which
caused the necessity for the extraordinary repair
6 It is agreed that Developers are initially the agent to contract and oversee
and do all acts necessary to accomplish the repairs and maintenance required and/or
authorized under this Agreement. The parties further agree that the agent may at any
time be replaced at the direction of a majority of the Lot Owners. Repair and
maintenance work on the Service Lines exceeding $5,000 shall be commenced when a
majority of the Lot Owners agree in writing that such work is needed, otherwise no prior
authorization required The agent shall obtain three bids from licensed contractors and
shall accept the lowest of said three bids and shall then initiate the work. The agent
shall be paid for all costs incurred, including a reasonable compensation for the agent's
services, and such costs shall be added to and paid as a part of the repair and
maintenance cost; provided, however, that compensation for the agent's services shall
in no event exceed an amount equivalent to 10% of the actual cost of repairs and
-maintenance -performed. - -In-performing his duties,-theagent, as he anticipates the
need for funds, shall notify the parties and each party shall within forty-five (45) days,
pay the agent, who shall maintain a trustee account and also maintain accurate
accounting records which are to be available for inspection by any party or authorized
agent upon reasonable request. All such records shall be retained by the agent for a
period of five (5) years.
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7 Should any Lot Owner fail to pay the pro rata share of costs and expenses
as provided in this Agreement, then the agent or any Lot Owner or Owners shall be
entitled without further notice to institute legal action for the collection of funds advanced
on behalf of such Lot Owner in accordance with the provisions of California Civil Code
Section 845, and shall be entitled to recover in such action, in addition to the funds
advanced, interest thereon at the current prime rate of interest, until paid, all costs and
disbursements of such action, including such sum or sums as the court may fix as and
for a reasonable attorney's fees.
8 Any liability of the Lot Owners for personal injury to the agent hereunder,
or to any worker employed to make repairs or provide maintenance under this
Agreement, or to third persons, as well as any liability of the Lot Owners for damage to
the property of agent, or any such worker, or of any third persons, as a result of or
arising out of repairs and maintenance under this Agreement, shall be borne, as
between the Lot Owners in the same percentages as they bear the costs and expenses
of such repairs and maintenance. Each Lot Owner shall be responsible for and
maintain his own insurance, if any By this Agreement, the parties do not intend to
provide for the sharing of liability with respect to personal injury or property damage
other than that attributable to the repairs and maintenance undertaken under this
Agreement. Each of the Lot Owners agrees to indemnify the others from any and all
liability for injury to him or damage to his property when such injury or damage results
from, arises out of, or is attributable to any maintenance or repairs undertaken pursuant
to this Agreement.
9 Lot Owners shall jointly and severally defend and indemnify and hold
harmless the City, the City Engineer, and their consultants and each of their officials,
directors, officers, agents and employees from and against all liability, claims, damages,
losses, expenses, personal injury and other costs, including costs of defense and
attorney's fees, to the agent hereunder, or to any lot Owners, any contractor, any
subcontractor, or to any other third persons arising out of or in any way related to the
use of, repair or maintenance of, or the failure to repair or maintain the Service Lines.
Nothing in the Agreement, the specifications or other documents or City approval
of the plans and specifications or inspection of the work is intended to include a review,
inspection, acknowledgement of any responsibility for any such matter, and Fire
Marshall, City, City's Engineer, and their consultants, and each of their officials,
directors, officers, employees and agents, shall have absolutely no responsibility or
liability thereof
- 10.- If in the City's sole judgment said-joint use Service Lines are not being
maintained in standards set forth in paragraph 4 of this Agreement, the City may within
ninety (90) days. Upon failure to demonstrate good faith to make repairs or construction
within ninety (90) days, the lot Owners agree that the City may make all repairs to said
Service Lines to meet the standards set forth in paragraph 4 and to then assess costs
to all lot Owners proportionately The agent shall be responsible for collecting the
assessments and ensuring payment to the City
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11 If the City elects to make necessary repairs in accordance with paragraph
10 above, said work shall be without warranty Said repair shall be accepted "as is" by
the Lot Owners without any warranty of workmanship and be guaranteed and
indemnified by them in accordance with paragraph 9
12. The foregoing covenants shall run with the land and shall be deemed to
be for the benefit of the land of each of the Lot Owners and each and every person who
shall at any time own all or any portion of the property referred to herein
13 It understood and agreed that the covenants herein contained shall be
binding on the heirs, executors, administrators, successors, and assigns of each of the
Lot Owners.
14 It is the purpose of the signatories hereto that this instrument be recorded
to the end and intent that the obligation hereby created shall be and constitute a
covenant running with the land and any subsequent purchase of all or any portion
thereof, by acceptance of delivery of a deed and/or conveyance regardless of form,
shall be deemed to have consented to an become bound by these presents, including
without limitation, the right of any person entitled to enforce the terms of this Agreement
to institute legal action as provided in paragraph 8 hereof, such remedy to be
cumulative and in addition to other remedies provided in this Agreement and to all other
remedies at law or in equity
15 The terms of this Agreement may be amended in writing upon majority
approval of the Lot Owners and the consent of the City
16 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
For OWNERS \ Date //2-/tJ~
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Date:
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For CITY OF POWA Y
Date q /n/D2-
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James L. Bowersox
N:\City\engserv\engforms\misc doc s\fire service malnt agmt
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CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
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: State of calif~
1 County of Yek!.-.vdr>
Name(s)of Slqner(s)
o personally known to me
~proved to me on the basis of satisfactory:
evidence
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.c ~ CommlsslonlHi32461; subscribed to the within instrument and
~,~~t\!l Notary Public - cafifomla, ~ acknowledged to'me<that he/SM'/the1 execute, d
~ '*~ Rivel5jde Counly ~ the same in his/~theli:... authorized
. MyCcmm.ExpresAug16;2ll3 capacity(i~ and that by his/her/their
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the entity upon behalf of which the perso~
acted, executed.the instrument.
Place Notary Seal Above Signature of Notary ublic
OPTIONAL
Though the information below is,not,required by law. it may prove valuat;Jle to persons relying on the document
I, and could prevent fraudulent removal and reattachment of this fOrT(l to another document.
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F Description of Attach~ocument ~-h h ~ Jh
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o Attorney in Fact
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Signer Is Represenling:
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EXHIBIT "A"
LEGAL DESCRIPTION
All private fire protection service lines including, but not limited to, swing check valve,
fire department connection, underground fire lines up to and including the underground
sweeps into each building, electrical service and associated appurtenances.
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EXHIBIT "B"
LEGAL DESCRIPTION
LOT 5 OF CITY OF POWAY TRACT NO 87-13 UNIT 2, PARKWAY BUSINESS
CENTRE, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO MAP THEREOF NO 13410, FILED IN THE OFFICE
OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, APRIL 8,1997