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HomeMy WebLinkAbout2006/10/03 Item 1 COUNCIL AGENDA STATEMENT Item i Meeting Date 10/03/06 ITEM TITLE: Resolution Approving the Grants of Easements and Maintenance Agreements for Chu)a Vista Tract No. 99-04, San Miguel Ranch, Phase III. ; SUBMITTED BY: Acting Director OfEng7ng'i~ Interim City Manager d I (4/5ths Vote: Yes_ No-X) REVIEWED BY: On February 29, 2000, City Council approved a Tentative Subdivision Map for San Miguel Ranch. The Final Maps and associated agreements were subsequently approved on January 24, 2006. Tonight Council will consider allowing the Home Owner Association to perpetually maintain the landscaping within the right-of-way for the project. San Miguel Ranch Phase III consists of neighborhoods J-I, J-2, K and L and is generally located west ofSR-I25 along San Miguel Ranch Road. RECOMMENDATION: That City Council adopt the Resolution approving the Grants of Easements and Maintenance Agreements for Chula Vista Tract No. 99-04, San Miguel Ranch, Phase III. BOARDS Al'lD COMMISSIONS: NIA DISCUSSION: Chula Vista Tract 99-04, San Miguel Ranch Phase III is a 263.l5-acre project consisting of 286 residential units. On January 24, 2006, with Resolution 2006-027, Council approved Grants of Easements & Maintenance Agreements for Neighborhoods J-I, J-2, K and L. Tonight's action will add additional areas of Home Owner Association (HOA) maintained landscaping within the public right-of-way for these neighborhoods. The areas to be added are currently the individual property ov.ner's obligation to maintain. The Grant of Easements & Maintenance Agreement for each neighborhood establishes certain specific obligations and responsibilities for the maintenance of certain improvements located along the public parkways. Initially the developer will maintain these areas until the HOA is able to assume the maintenance. There are provisions within the Grant of Easement & Maintenance Agreements that allow for the assignment of the agreement to the HOA with the City's concurrence. The Grant of Easements & Maintenance Agreements for the four neighborhoods are labeled Exhibits 1, 2, 3 and 4. ENVIRONMENTAL REVIEW: The Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act and has determined that the project was adequately covered in the previously adopted Final Subsequent Environmental Impact Report for the San Miguel Ranch Sectional Planning Area and Tentative Maps (FSEIR 97-02), thus, no further environmental review or documentation is necessary. 1-1 " Page 2, Item~ Meeting Date 10/03/06 DECISION MAKER CONFLICTS: Staff has reviewed the property holdings of the City Council and has found no property holdings within 500 feet of the boundaries of the property which is the subj ect of this action. FISCAL IMPACT: There is no impact to the General Fund. The developer has paid all fees and other costs associated with the proposed agreements. . , Attachments and Exhibits: Attachment A: Plat ofChula Vista Tract No. No. 99-04, San Miguel Ranch, Phase III Attachment B: Developer's Disclosure Statement Exhibit 1: Grant of Easements & Maintenance Agreement (Neighborhood J-1) Exhibit 2: Grant of Easements & Maintenance Agreement (Neighborhood J-2) Exhibit 3: Grant of Easements & Maintenance Agreement (Neighborhood K) Exhibit 4: Grant of Easements & Maintenance Agreement (Neighborhood L) TA File No. SM016F, SM015F, SM018F, SM022F J:\Engineer\AGENDA\CAS2006\lO-03-06\CAS for SM Phase m GEMA.doc 1-2 ATIACHMENT A CHULA VISTA TRACT NO. 99-04 SAN MIGUEL RANCH PHASE 3 "A" MAP NO. 1 "0 ';e o '4 ~ \1 ~ ~ COUNTY OF SAN DIEGO CITY OF CHULA VISTA C'oc: O~.~~ . 0 O~ -l}-t- LOT "No C'..s., '. 4<') '0<.,""-.(;>0 CD I:>~ -v NO SCALE CITY OF CHULA VISTA I COUNTY -;F SAN DIF:C-;- I I . HUNSAKER ~~~~~!E5 I'\.ANNtr4C 'II1'1"J HucrnekmI Sftet ENrnmINC ... ""'" Co '!7121 SUI\IEYINC Pt-(P~o:M. FX{asB)SSB.14M R:\a359\.tMap\G Cauncsl &II A Mop r.dwg[f27SjJul-19-20CU:1J:.3B I City of Chula Vista Disclosure Statement Pursuant to Council Policy 101-0 I, prior to any action upon matters that will require discretionary action by the Council, Planning Commission and all other official bodies of the City, a statement of disclosure of certain ownership or financial interests, payments or campaign contributions for a City of Chula Vista , election must be filed. The following information must be disclosed: . I. List the names of all persons having a [mancial interest in the property that is the subject of the application or the contract, e.g., owner, applicant, contractor, subcontractor, material supplier. O('oc-~.,.. \ic. \ \"2e We 4\- 'PCl>.>r+.....~: LLC 2. If any person. identified pursuant to (I) above is a corporation or partnership, list the names of all individuals with a $2000 investment in the business (corporation / partnership) entity. <:-l"f\""" 'I" . \1~"'\"'-- ~ T'B~"-e C\t'---'..k<--- "iL. SJ..,"Q"-~ I... 3-e: ~J.JG4'-J ~0,^ u.. )). L",.. 0\,,>.. - 3. If any person. identified pursuant to (I) above is a non-profit organization or trust, list the names of any person serving as director of the non-profit organization or as trustee or beneficiary or trustor of the trust. 4. Please identifY every person, including any agents, employees, consultants, or independent .,99ntractors you have assigned to represent you before the City in this matter. ~~'^~ \..\~~-eX' ~r...,f+ nO' ~ '= k 5. Has any person. associated with this contract had any financial dealings with an official.. of the City ofChula Vista as it relates to this contract with the past 12 months? Yes _ No ~ 1-4 / City of Chula Vista Disclosure Statement If yes, briefly describe the nature of the financial interest the official" may have in this contract, " . , , 6, Have you made a contribution of more than $250 within the past twelve (12) months to a current member of the Chu1a Vista City Council? No Yes / If yes, which Council member? 4~'e V~\\\c..... -- 7, Have you provided more than $340 (or an item of equivalent value) to an official"" of the City of Chula Vista in the past twelve (12) months? (This inclu~s being a source of income, money to retire a legal debt, gift, loan, etc.) Yes _ No ~ If Yes, which official"" and what was the nature of item provided? Date: Signature of Contractor/Applicant ~, . Print or type name of Contractor/Applicant P 'd fi d . di 'dual fi ~shif~~ "t.'Meo;.~ 'al 1 b erson IS e ne as: any m VI , um, co-partner p, Jomt venture, aSSOCiatIOn, SOCI c u , fraternal organization, corporation, estate, trust, receiver syndicate, any other county, city municipality, district, or other political subdivision, - or any other group of combination acting as a unit. . Official includes, but is not limited to: Mayor, Council member, Planuing Commissioner, Member of a board, commission, or committee of the City, employee, or staff members. 1-5 RESOLUTION N0.2006- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE GRANT OF EASEMENTS AND MAINTENANCE AGREEMENTS FOR CHULA VISTA TRACT NO. 99-04, SAN MIGUEL RANC1;I, PHASE m. , ... , WHEREAS, on January 24, 2006, with Resolution 2006-027, Council approved grants of easements and maintenance agreements for Neighborhoods J-1, J-2, K and L; and WHEREAS, additional grants of easements are necessary for HOA to maintain landscaping within the public right of way for these neighborhoods; and WHEREAS, the Grants of Easements and Maintenance Agreement for San Miguel Ranch Phase 3 Planning area "J-1, J-2, K, and L", sets forth the developer's obligation to maintain landscaping in the public right of way; and WHEREAS, the agreements will be assigned to the homeowner's association (HOA) after the landscaping has been established and turned over to the HOA to maintain; NOW, THEREFORE, BE ITRESOL VED the City Council of the City ofChula Vista does hereby approve the Grant of Easements and Maintenance Agreements for the grant of easements and maintenance for Chula Vista Tract No. 99-04 San Miguel Ranch Phase 3 Planning areas "J-l, J-2, K, and L". Copies of which shall be kept on file in the office of the City Clerk. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized to execute said Agreements on behalf of the City of Chula Vista, and the City Engineer is authorized to assign the agreements to the HOA. Presented by Approved as to form by /~ (ab I~ ltfv1:J1. f / ~ Attorney Leah Browder Acting Director of Engineering H:\ENGINEER\RESOS\Resos2006\09-26-06\Grants of easements for San Miguel Ranch B maps Phase Ill.doc 1-6 ! / THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL;' . , , ~, 11,1 c-'cl A e / ~Attomey Dated: Grant of Easements, License and Maintenance Agreement Between the City of Chula Vista and Proctor Valley West Partners, LLC Chula Vista Tract No, 99-04 San Miguel Ranch Planning Area "J-l" - Montecito 1-7 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Clerk City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 " No transfer tax is due as this is a conveyance to a public agency for less than a fee interest for which no cash consideration has been paid or received. (.ABOVE SPACE FOR RECORDER'S USE) GRANT OF EASEMENTS, LICENSE AND MAINTENANCE AGREEMENT CHULA VISTA TRACT NO. 99-04 SAN MIGUEL RANCH PLANNING AREA "J-l" - MONTECITO (DEDICATED EASEMENTS) This GRANT OF EASEMENTS, LICENSE AND MAINTENANCE AGREEMENT ("Agreement") is made as ofthis _ day of , 200_, by and between the CITY OF CHULA VISTA, a municipal corporation ("City"), and PROCTOR V ALLEY WEST PARTNERS, LLC, a Delaware lirnited liability company ("PVWP"). RECITALS A. This Agreement concerns and affects certain improvements with portions of the real property located in Chula Vista, California, more particularly described in Exhibit" A" attached hereto and incorporated herein ("Property"). The Property is part of a planned residential development proj ect commonly known as "SanMiguel Ranch", Chula Vista Tract No. 99-04, being the subject of the City Council Resolution No. 2001-261 (the "City Resolution"). For purposes of this Agreement, the term "Proj ect" shall refer to the overall San Miguel Ranch proj ect, including, but not limited to the "Property." B. PVWP is the owner of the Property and the Declarant by assignment under that certain Master Declaration of Restrictions For San Miguel Ranch Master Association filed for record in the Official Records of SanDie go County, California (the "Master Declaration"). The Master Declaration provides for SANMIGUEL RANCH MASTER ASSOCIATION, a California Nonprofit Mutual Benefit Corporation ("MHOA") to maintain certain areas in the Project. Furthermore, one or more sub- associations maybe formed ("SHOA") for a particularproject(s) within San Miguel Ranch Planned 4/13/06 -1- 065550-0011305153.1 1-8 , / Development, the purposes of which would include the maintenance of certain amenities within the proj ect over which the SHOA has jurisdiction. C. The Property is or will become covered by that the certain final map(s) (the "Final Maps") described on Exhibit "A" attached hereto and referen,ced in the title to this Agreement. . , , D. In order for PVWP to obtain the Final Maps and fur the City to have assurance that the maintenance of certain areas within the Project would be provided for, the City and PVWP entered into a Supplemental Subdivision Improvement Agreement pursuant to the City Resolution, in which PVWP agreed that maintenance of such areas shall be accomplished by the creation of a home owners association. The Parcels shown on Exhibit "B" attached hereto describe those particular areas which were dedicated to the public on one or more of the Final Maps but which include landscaping and drainage improvements to be maintained by the I.\IlHOA. The public areas to be maintained by the MHOA are collectively referred to as the "MHOA Maintained Public Areas." E. The City desires to grant to PVWP easements for landscape maintenance purposes upon, over and across the MHOA Maintained Public Areas as shown on Exhibit "B," in order to facilitate the obligations ofPVWP as set forth in Supplemental Subdivision Improvement Agreements, adopted pursuant to the City Resolution. F. This Agreement supplements that certain Grant ofEasements, License and Maintenance Agreement Chula Vista Tract No. 99-04 San Miguel Ranch Planning Area "J -I" - Montecito recorded on February 8,2006 as Document No. 2006-0095431 which failed to show all of the MHOAMaintained Public Areas on the attached exhibits. NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as set forth below. I. Grant of Easements. The City hereby grants to PVWP and its agents, successors and assigns, non-exclusive easements and rights-of-way over and across the MHOA Maintained Public Areas for the purpose of maintaining, repairing and rep lacing landscaping improvements located thereon. These grants are made without any warranties of any kind, express or implied, other than the warranty stated in Paragraph 14(t) below. 2. Maintenance Obli2ations (a) PVWP to Initially Maintain. PVWP hereby covenants and agrees, at its sole cost and expense, to maintain, repair and replace, or cause to be maintained, repaired or replaced, those improvements within the I.\IlHOAMaintainedPublic Areas which are described on Exhibit "C" attached hereto, at a level equal to or better than the level of maintenance which is acceptable to the Director of Public Works Operations, at hislher discretion and equivalent to City or Community Facilities District maintained right-of-way facilities. For purposes of this Agreement, the term "Maintenance" or "Maintain" shall mean the maintenance, repair, the provision of water and replacement obligations described herein and on Exhibit 4/13/06 .2. 065550~OO1l305153.1 1-9 ! "C" hereto and shall also include repair and replacement at no cost to the City of any City ovmed property that is damaged during performance of the maintenance responsibilities pursuant to this Agreement. Exhibit "C" also refers to the maintenance responsibilities of the City. (b) Transfer to lVffiOA. Upon PVWP tran&fer of maintenance obligations to the MHOA, (i) the MHOA shall become obligated to perfdi-m the obligations so transferred, and (ii) subject to the City det=in:ing that the requirements 6fParagraph 3 below have been satisfied, PVWP shall be released from such obligation. Transfer of maintenance obligations to the MHOA may be phased (that is, there may be multiple transfers). PVWP represents to City that it intends to, and has the authority to, unilaterally transfer said maintenance obligations either (i) to theMHOA and that such transfer has been provided for in the Master Declaration, and that such document(s) include the provisions described in Paragraph 3(a)(ii) below, or altematively (ii) to a new homeowners association (the "New Association") established for maintenance of the open space and thoroughfare median areas in the Prop"erty, and that such transfer shall be provided for in the declaration of restrictions (the "New Declaration") for the New Association, and that such document(s) shall include the provisions described in Paragraph 3(a)(ii) below. References below in this Agreement to the "Association" shall include the New Association and "Declaration" shall include the New Declaration ifPVWP elects to form a new homeowners association for the Property. (c) Transfer By lVffiOA. The MHOA shall have the right to transfer Maintenance obligations to a sub-association ("SHOA") or to the owner of an apartment project ("Transferee"). Upon the I\IIHOA's transfer of Maintenance obligations to a Transferee, (i) the Transferee shall become obligated to perform the obligations so transferred, (ii) the MHOA shall retain the right to perform the Maintenance should the Transferee fail to do so, and (iii) the MHOA shall be released from the obligations so transferred subject to the City determining that the requir=ents of Paragraph 4 below have been satisfied. Although it is possible that Maintenance obligations might be transferred to an apartment owner, PVWP does not believe it is likely that Maintenance obligations will be transferred to an apartment owner. 3. Assi!mment bv PVWP. LLC and Release of PVWP (a) Assignment. Upon PVWP's transfer of the Maintenance obligations to the MHOA, it is intended by the parties that the MHOAshall perform the Maintenance obligations either itself or by contractors. Such transfer will release PVWP from its obligations only if all of the following occur: (i) MHOAAccepts Obli~ation. The MHOAhas unconditionally accepted and assumed all of PVWP's obligations under this Agre=ent in wTiting, such assignment provides that the burden of this Agreement remains a covenant running with the land, and the assignee expressly assumes the obligations of PVWP under this Agreement. The assignment shall also have been approved by the appropriate governing body of the MHOA by resolution or similar procedural method and approved 4/13/06 -3- 065550-0011305153.1 1-10 / > as to form and content by the City Attorney. The City shall not unreasonab lywithhold its consent to such assignment. (ii) MHOA's Master Declaration. The City has confirmed that there have been no modifications to the recorded Master Declaration previously approved by City, to any of the following provisions: the MHOA shall be responsible for the maintenance of the MHOA Maintained Public Areas, the MHOA~shall indernnify City for all claims, demands, causes of action, liability or loss related to or arising from the maintenance activities, and the MEOA shall not seek to be released by City from the maintenance obligations of this Agreement, without the prior consent of City and one hundred percent (100%) of the holders of first mortgages or owners of the Property. (iii) MHOA Insurance. The MHOA procures ,and formally resolves to maintain at its sole cost and expense, commencing no later than the City's release of all ofPVWP's landscape maintenance bonds, a policy of public liability insurance which at least meets the requirements of Section 5.1 (a) of the Master Declaration which reads as follows: (a) General Liability Insurance. The Master Association shall obtain a comprehensive general liability and property damage insurance policy insuring the Master Association and the Owners against liability incident to ownership or use of the Master Association Property. The limits of such insurance shall not be less than $3 Million covering all claims for death, personal injury and property damage arising out of a single occurrence. The insurer issuing such insurance shall have rating by A.M. Best of "A, Class V" or better with no modified occurrences and as admitted by Best's Insurance Guide. Such insurance shall include the following additional provisions provided they are available on a commercially reasonable basis: (i) The City of Chula Vista shall be named as an additionally insured party to such insurance pursuant to the Citys requirements the Master Association do so; (ii) The policy shall not contain a cross-suit exclusion clause which would abrogate coverage should litigation ensue between insureds; (iii) The policy shall contain the following severability clause (or language which is substantially the same): 4/13/06 -4- 065550-0011305153.1 1-11 ; , "The coverage shall apply separately to each insured except with respect to the limits of liability." This Section 5.1(a) may not be amended without the written consent of the City Planning Director or City A,ttorney. , The i\1HOA shall provide the City with a Certificafe of Insurance upon procurement of the policy as set forth above. (b) Release. When all conditions precedent in Paragraph 3( a) are fulfilled, PVWP shall be released from its obligations under this Agreement, including its security and insurance requir=ents. PVWP acknowledges that it has a contractual obligation to perform the terms and conditions of this Agreement until and unless released by the City from this Agreement. At least sixty (60) days prior to such transfer, PVWP shall give a notice to the City of PVWP's intent to transfer its Maintenance obligations herein and provide the Citywith the appropriate documents listed in Paragraph 3(a). 4. Assignment by lVffiOA and Release oflVffiOA. (a) Assignment. Upon MHOA's transfer of the Maintenance obligations to a Transferee, it is intended by the parties that the Transferee shall perform the Maintenance obligations either itself or by contractors. Such transfer will release the MHOAfrom its obligations only if all of the following occur: (i) Transferee Acce,pts Obligation. The Transferee has unconditionally accepted and assumed all of the MHOA's obligations under this Agreement in writing, such assignment provides that the burden of this Agre=ent remains a covenant running with the land, and the assignee expressly assumes the obligations of the MHOA under this Agreement. If the Transferee is an SHOA, the assignment shall also have been approved by the appropriate governing body of the SHOA by resolution or similar procedural method and approved as to form and content by the City Attorney. The City shall not unreasonably withhold its consent to such assignment. (ii) SHOA's Declaration of Restrictions. If the Transferee is an SHOA, the City has reviewed and approved the SHOA's recorded Declaration of Restrictions to coniirnl that said document contains appropriate maintenance and insurance provisions. (iii) SHOA Insurance. The Transferee procures and formally resolves to Maintain at its sole cost and expense, a policy of public liability insurance which meets the requirements set forth in Paragraph 3 (a) (iii) above. The SHOA shall provide the City with a Certificate of Insurance upon acceptance of the transfer of the Maintenance obligations herein. 4/13/06 -5- 065550-0011 J051Hl 1-12 I I (b) Release. When all condition.s precedent in Paragraph 4( a) are fulfilled, the MHOA shall be released from its obligations under this Agreement, including its security and insurance requirements. At least sixty (60) days prior to such tran.sfer, MHOA shall give notice to the City ofMHOA's intent to tran.sfer its Maintenance obligations herein and provide the City with the appropriate documents listed in Paragr~ph 4(a). c. , 5. PVWP's Insurance. Until such time as the MHOA has obtained the general liability insurance required by Section 5.1 (a) of the Master Declaration, PVWP agrees to procure and formally resolves to maintain at its sole cost and expense, commencing no later than the date that the landscape architect of record has submitted a letter of substantial conformance pertaining to work being completed to the General Services Department and the General Services Department Director or his designee has deemed the work complete and satisfactory, a policy of public liability insurance that would include, but is not limited to the following: General Liability Insurance. PVWP shall obtain a comprehensive general liability and properly damage insurance policy insuring PVWP again.st liability incident to ownership or use of the Property. The limits of such insurance shall not be less than $3 Million covering all claims for death, personal injury and property damage arising out of a single occurrence. The insurer issuing such insurance shall have rating by AM. Best "A, Class V" or better with modified occurrences and as admitted by Best's Insurance Guide. Such insurance shall include the following additional provisions provided they are available on a commercially reasonable basis: (i) The CityofChula Vista shall be named as an additionally insured party to such insurance pursuant to the City's requirements PVWP do so; (ii) The policy shall not contain a cross-suit exclusion clause which would abrogate coverage should litigation ensue between insureds and; (iii) The policy shall contain the following severability clause (or language which is substantially the same): "The coverage shall apply separately to each insured except with respect to the limits of liability." PVWP shall provide the City with a Certificate of Insurance upon procurement of the policy as set forth above. 6. Indemnitv. PVWP shall defend, indemnify and hold harmless the City, its officers, agents and employees, from any and all actions, suits, claims, damages to persons or property, costs including attorney's fees, penalties, obligation.s, errors, omission.s, demands, liability, or loss of any sort (herein" claims or liabilities"), that may be asserted or claimed by any person, firm, or entityibecause of or arising out of or in connection with the use, maintenance, or repair of the MHOA Maintained Public Areas. PVWP shall not have any liability under this section by reason of the Transferee's failure to maintain. 41B/()6 -6- 065550.0011305153.1 1-13 f / 7. Indemnity If Transferee. The document whereby PVWP transfers a Maintenance obligation to a Transferee shall be signed by both PVWP and the Transferee and shall set forth an express assumption of Maintenance and other obligations hereunder and shall include the following indemnification provision: Indemnitv. The Transferee shall defend, inderimify, and hold hannless the City, its officers, agents and employees, from any and all actions, suits, claims, damages to persons or property, costs including attorney's fees, penalties, obligations, errors, omissions, demands, liability, or loss of any sort (herein "claims or liabilities"), which result from the Transferee's failure to comply with the requirements 0 f the obligations transferred hereby to Transferee. Transferee shall not have any liability under this Indemnity by reason of another party's failure to maintain. It is specifically intended that the City shall have the right to enforce this Indemnity. This Indemnity may not be amended without the written consent of the City Director of Planning and Building or City Attorney. 8. Agreement Binding Upon Any Successive Parties. This Agreement shall be binding upon PVWP and any successive Declarant under the Master Declaration. This Agreement shall be binding upon ]\;fl{OA and any Transferees upon transfer of maintenance obligations to the ]\;fl{OA or Transferee, respectively. This Agreement shall inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property. 9. Agreement Runs With the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Property and the City, its successors and assigns, and any successor-in-interest thereto. The City is deemed the beneficiary of such covenants for and in its own right and for the purposes of protecting the interest of the community and other parties, public or private, in whose favor and for whose benefit such covenants running with the land have been provided, without regard to whether the City has been, remained or are owners of any particular land or interest therein. If such covenants are breached, the City shall have the right to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it or any other beneficiaries of this Agreement and the covenants may be entitled. 10. Governinl! Law. This Agreement shall be governed and construed in accordance with the laws of the State of California. 11. Effective Date. The terms and conditions of this Agreement shall be effective as of the date this Agreement is recorded in the Official Records of the San Diego County Recorder's Office. 12. Counteroarts. This Agreement may be executed in any number of counterparts, each of which shall be original and all of which shall constitute one and the same document. 4113/06 -7- 06555'0-0011 305153.1 1-14 I i 13. Recordinl!:. The parties shall cause this Agre=ent to be recorded in the Official Records of the San Diego County Recorder's Office within thirty (30) days after this Agre=ent has been approved by the City Council. 14. Miscellaneous Provisions. ., " (a) Notices. Unless otherwise provided in this'Agreement or by law, any and all notices required orperrnitted by this Agre=ent or by law to be served on or delivered to either party shall be in writing and shall be de=ed duly served, delivered and received when personally delivered to the party to whom it is directed or, in lieu thereof, when three (3) business days have elapsed following deposit in the United States mail, certified orregistered mail, return receipt requested, first-class postage prepaid, addressed to the address indicated in this Agreement. A party may change such address for the purpose of this Paragraph by giving written notice of such change to the other party. If To City: CITY OF CHULA VISTA Department of Public WorkslEngineering Division 276 Fourth Avenue Chula Vista, CA 91910 Attn: City Engineer If To NNP, LLC: PROCTOR V ALLEY WEST PARTNERS, LLC The San Miguel Ranch Company 85 Argonaut, Suite 205 Aliso Viejo, CA 92656 Attn: Mr. Stephen E. Hester (b) Captions. Captions in this Agreement are inserted for convenience of reference and do not define, describe orlimit the scope or intent of this Agre=ent or any of its terms. (c) Entire Agreement. This Agre=ent, together with any other written document referred to herein, embody the entire agre=ent and understanding between the parties regarding the subject matter hereof, and any and all prior or contemporaneous oral or written representations, agreements, understandings and/or stat=ents shall be of no force and effect. This Agre=ent is not intended to supersede or amend any other agre=ent between the parties unless expressly noted. (d) Recitals; Exhibits. Anyrecitals set forth above and any attached exhibits are incorporated by reference into this Agre=ent. 41l3/06 -8- 065550~0011 305153.1 1-15 (e) Compliance With Laws. In the performance of its obligations under this Agreement, PVWP, its agents and employees, shall comply with any and all applicable federal, state and local rules, regulations, ordinances, policies, permits and approvals. (f) Authority of Signatories. Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority, and capacity and direction from its principal to enter into this Agreement, and that all resdlutions and/or other actions have been taken so as to enable said signatory to enter into this Agreement. (g) Modification. This Agreement may not be modified, terminated or rescinded, in whole or in part, except by written instrument duly executed and acknowledged by the parties hereto, their successors or assigns, and duly recorded in the Official Records of the San Diego County Recorder's Office. (h) Severability. If any term, covenant or condition of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term, covenant or condition to person or circumstance, shall not be affected thereby and each term, covenant or condition shall be valid and be enforced to the fullest extent permitted by law. (i) Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or its attorney prepared and/or drafted this Agreement. It shall be conclusively presumed that both parties participated equally in the preparation and/or drafting of this Agreement. [REMAINDER OF P AGE INTENTIONALLY LEFT BLANK] 4/13/06 -9- 065550-0011305153.1 1-16 , , IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first set forth above. "Cityll: CITY OF CHULA VISTA, a municipaJ. c9Iporation , By: Stephen C. Padilla, Mayor Attest: Susan Bigelow, City Clerk APPROVED AS TO FORM: By: Ann Moore, City Attorney "PVWP": PROCTOR VALLEY WEST PARTNERS, LLC, a Delaware limited liability company By: TrimarkPacific-Montecito, LLC, a California limited liability company By: TPH LLC, a California limited liability company, Member Manager By: Trimark Ventures, Inc., a California corporation, Its: Memb~~ By Stephen E. Hester Its; \T~G\w fll;;~~dcl* ~~~, V,1:..re YV""e~t 4/13/06 -10- 065550-0011305153.1 1-17 / STATE OF CALIFORt'ITA ) ) ss. COUNTY OF O~ iJ-"'~V ) On '-11 t. l , 200~, before me, J ' ~ VG\ ~ i ( , VI D -nV I f IA. L, I ( \- (here insert name and title of officer), personally appeared ,( 1-+1. l!--e , V1 ~ .fiJ-i-i- .'1 personally known to me (€lr prnw.r! t" mp Q" me gao;i. sf satisfactGl)' Gviaooce} to be the personW whose name(s-Yis/ar€Subscribed to the within instrument and acknowledged to me that hel~ executed the same in hislhcrt1:llelr authorized capaci~ and that by his~ignatureM on the instrument, the person~r the entity upon behalf of which the person(s}acted, executed the instrument. WITNESS my hand and official, seal. ) , ~ 1/1' tM fi'--/ SIgnature .' -, I I @ J. W/lIID Ccmm. IaIcn (I l.clZ_ . IlcIaIy NlIc . C - .... c:.ng. CoIwIIr _c-....._.. (Seal) '." ST ATE OF CALIFORNIA ) ) ss. COUNTY OF ) On , 200_, before me, (here insert name and title of officer), personally appeared personally known to me (or 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 hislher/their authorized capacity(ies), and that byhislher/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) 4/13/06 -11- 065550-0011305153.1 1-18 EXHIBIT "A" Lel!al Descriotion 4/13/06 065550-0011305153.1 /-/1 EXHIBIT "A" LEGAL DESCRIPTION . , " , ALL THAT LAND INCLUSIVE OF CHULA VISTA TRACT NO. 99-04, SAN MIGUEL RANCH PLANNING AREA "J-1', ACCORDING TO MAP THEREOF NO. 15258 FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER ON FEBRUARY 8, 2006 IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA )9~/-#, a~ 3-3o-ZOD~ DAVID W. AMBLER L.S.7322 HUNSAKER & ASSOCIATES SAN DIEGO, INC. PAGE 1 OF 1 :DV M:\2091\057\Lega! DescriptionslA04 Esmts & Maint J-1 c.doc WO 2091-0057 3129/06 1-20 EXHIBIT "B" Plats Showing Public Areas To Be Privately Maintained 4/13/06 1- z I 065550.0011305153.1 ..0: ,~ "'l ~ o ~ ~ ~ g \;:,~ ! ~ .&. ~ \;j, ';< ~ -:. t ' ,\' I " '€I \ \ b, g VTIlA1 VlflfN 2DlO~\' \' \ ~" \ 5 _ I \ \ '!!?~ "'f;~ i \ 3- _ ,I \" ~~~r\"i%\O ~~ I \ ~~~~~~i'~ ~~ \ ~i""\;1 ~<lYo'ID~~'s " ..-.T 'Z c- I \ 0'. ~ 0' - ,< 0:;) :: 7- c!.. ~, .<,- - -:- . ~ - u 00 ~<7-_ .....0::,- ........>.-2.1:- _' '2.,., ~~.<,G3 ';t; :- ,....1 :t .~ '{; po. '" ~ >~, <\,l:\ ,....1ifJ -,.<, :=. '....,-1 ~ ~..o-\ up.. 'p ;- '3 IN \ <. -' ..e W _., '$ f.,) -0 ~~~" , u '$ "" , , \\", '.,.--------. ~--- --~\ ~ - I'l~ ~ ~~ \ c.i UU f.,)' c.:: "- ~ , \ I I \ ----, -\ \ \ \ \ \':"" '3 ';, S ~.~ .,# '~ 1~ --- ----- \ \ .. '" '" <'l - <5 ~ -- \ --\-' ---\~ \&. \, '" '0 \ , f EXHIBIT "C" Maintenance ResDonsibilities City of Chnla Vista Area HOA Maintenance Maintenance Median and parkways within Landscaping in the medians Maintenance of curb, gutter, those portions of those public and parkways including sidewalks and pavement. road shown on Exhibit "B" irrigation, trimming and pruning of trees, and maintenance and irrigation of turf areas. ., 4113/06 065550-0011 305153.1 1-23 , , THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALL Y SIGNED UPON APPROVAL BY THE CITY COUNCil:; , ", Dated: Grant of Easements, License and Maintenance Agreement Between the City of Chula Vista and Proctor Valley West Partners, LLC Chula Vista Tract No. 99-04 San Miguel Ranch Planning Area "J-2" - Estrella 1-24 ! , RECORDING REQUESTED BY MTI WHEN RECORDED RETURN TO: City Clerk City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 .. i. , , No transfer tax is due as this is a conveyance to a public agency for less than a fee interest for which no cash consideration has been paid or received. (ABOVE SPACE FOR RECORDER'S USE) GRANT OF EASEMENTS, LICENSE AND MAINTENANCE AGREEMENT CHULA VISTA TRACT NO. 99-04 SAN MIGUEL RANCH PLANNING AREA "J-2" - ESTRELLA (DEDICATED EASEMENTS) This GRANT OF EASEMENTS, LICENSE AND MAINTENANCE AGREEMENT ("Agreement") is made as of this _ day of ,200_, by and between the CITY OF CHULA VISTA, a municipal corporation ("City"), and PROCTOR V ALLEY WEST PARTNERS, LLC, a Delaware limited liability company ("PVWP"). RECITALS A. This Agre=ent concerns and affects certain improv=ents with portions of the real property located in Chula Vista, California, more particularly described in Exhibit" A" attached hereto and incorporated herein ("Property"). The Property is part of a planned residential development project commonly known as "San Miguel Ranch", Chula Vista Tract No. 99-04, being the subj ect of the City Council Resolution No. 2001-261 (the "City Resolution"). For purposes of this Agre=ent, the term "Proj ect" shall refer to the overall SanMiguel Ranch project, including, but not limited to the "Property." B. PVWP is the owner ofthe Property and the Declarant by assignment under that certain Master Declaration of Restrictions For San Miguel Ranch Master Association filed for record in the Official Records of San Diego County, California (the "Master Declaration"). The Master Declaration provides for SAN MIGUEL RANCH MASTER ASSOCIA nON, a California Nonprofit Mutual Benefit Corporation ("MHOA") to maintain certain areas in the Project. Furthermore, one or more sub- associations maybe formed ("SHOA") for a particularproject(s) within San Miguel Ranch Planned 4n3/06 -1- 065550-0011305155.1 1-25 ; / Development, the purposes of which would include the maintenance of certain amenities within the proj ect over which the SHOA has jurisdiction. C. The Property is or will become covered by that the certain final map(s) (the "Final Maps") described on Exhibit" A" attached hereto and refere:q.ced in the title to this Agreement. : .~ D. In order for PVWP to obtain the Final Maps and fur the City to have assurance that the maintenance of certain areas within the Project would be provided for, the City and PVWP entered into a Supplemental Subdivision Improvement Agreement pursuant to the City Resolution, in which PVWP agreed that maintenance of such areas shall be accomplished by the creation of a home owners association. The Parcels shown on Exhibit" B" attached hereto describe those particular areas which were dedicated to the public on one or more of the Final Maps but which include landscaping improvements to be maintained by the MHOA. The public areas to be maintained by the MHOA are collectively referred to as the "MHOA Maintained Public Areas." E. The City desires to grant to PVWP easements for landscape maintenance purposes upon, over and across the MHOA Maintained Public Areas as shown on Exhibit "B," in order to facilitate the obligations ofPVWP as set forth in Supplemental Subdivision Improvement Agreements, adopted pursuant to the City Resolution. F. This Agreement supplements that certain Grant ofEasements, License and Maintenance Agreement Chula Vista Tract No. 99-04 San Miguel Ranch Planning Area" J -2" - Estrella recorded on February 8, 2006 as Document No. 2006-0095531 which failed to show all of the MHOAMaintained Public Areas on the attached exhibits. NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as set forth below. 1. Grant of Easements. The City hereby grants to PVWP and its agents, successors and assigns, non-exclusive easements and rights-of-way over and across the MHOA Maintained Public Areas for the purpose of maintaining, repairing and replacing landscaping improvements located thereon. These grants are made without any warranties of anykind, express or implied, other than the warranty stated in Paragraph 14(1) below. 2. Maintenance Obli!;ations (a) PVWP to Initially Maintain. PVWP hereby covenants and agrees, at its sole cost and expense, to maintain, repair and replace, or cause to be maintained, repaired or replaced, those improvements within the MHOA Maintained Public Areas which are described on Exhibit "e" attached hereto, at a level equal to or better than the level of maintenance which is acceptable to the Director of Public Works Operations, at his/her discretion and equivalent to City or Connunity Facilities District maintained right-of-way facilities. For purposes of this Agreement, the term "Maintenance" or "Maintain" shall mean the maintenance, repair, the provision of water and replacement obligations described herein and on Exhibit 4/13/06 -2- 065550-0011 305155.1 1-26 ! "C" hereto and shall also include repair and replacement at no cost to the City of any City owned property that is damaged during performance of the maintenance responsibilities pursuant to this Agreement. Exhibit "C" also refers to the maintenance responsibilities of the City. (b) Transfer to MHOA. Upon PVWP tr~fer of maintenance obligations to the MHOA, (i) the MHOA shall become obligated to perform. the obligations so transferred, and (ii) subject to the City determining that the requirrmentsbfparagraph 3 below have been satisfied, PVWP shall be released from such obligation. Transfer of maintenance obligations to the MHOA may be phased (that is, there maybe multiple transfers). PVWP represents to City that it intends to, and has the authority to, unilaterally transfer said maintenance obligations either (i) to the MHOA and that such transfer has been provided for in the Master Declaration, and that such document( s) include the provisions described in Paragraph 3(a)(ii) below, or alternatively (ii) to a new homeowners association (the "New Association") established for maintenance of the open space and thoroughfare median areas in the Property, and that such transfer shall be provided for in the declaration of restrictions (the "New Declaration") for the New Association, and that such document(s) shall include the provisions described in Paragraph 3(a)(ii) below. References below in this Agreement to the "Association" shall include the New Association and "Declaration" shall include the New Declaration ifPVWP elects to form a new homeowners association for the Property. (c) Transfer By MHOA. TheMHOA shall have the right to transfer Maintenance obligations to a sub-association ("SHOA") or to the owner of an apartment project ("Transferee"). Upon the MHOA's transfer of Maintenance obligations to a Transferee, (i) the Transferee shall become obligated to perform the obligations so transferred, (ii) the MHOA shall retain the right to perform the Maintenance should the Transferee fail to do so, and (iii) the MHOA shall be released from the obligations so transferred subj ect to the City determining that the requirements of Paragraph 4 below have been satisfied. Although it is possible that Maintenance obligations might be transferred to an apartment owner, PVWP does not believe it is likely that Maintenance obligations will be transferred to an apartment owner. 3. Assilmment bv PVWP. LLC and Release of PVWP (a) Assignment. Upon PVWP's transfer of the Maintenance obligations to the MHOA, it is intended by the parties that the MHOA shall perform the Maintenance obligations either itself or by contractors. Such transfer will release PVWP from its obligations only if all of the following occur: (i) MHOAAcceots Obligation. The MHOA has unconditionally accepted and assumed all of PVWP's obligations under this Agreement in writing, such assignment provides that the burden of this Agreement remains a covenant running with the land, and the assignee expressly assumes the obligations of PVWP under this Agreement. The assignment shall also have been approved by the appropriate governing body of the MHOA by resolution or similar procedural method and approved 4/13/06 -3- 065550-0011305155.1 1-27 I , as to form and content by the City Attorney. The City shall not unreasonablywithhold its consent to such assignment. (ii) MHOA's Master Declaration. The City has confumed that there have been no modifications to the recorded Master De<;laration previously approved by City, to any of the following provisions: the MHOA sl1allhe responsible for the maintenance of the MHOAMaintained Public Areas, the MHOA shall indemnify City for all claims, demands, causes of action, liability or loss related to or arising from the maintenance activities, and the MHOA shall not seek to be released by City from the maintenance obligations of this Agre=ent, without the prior consent of City and one hundred percent (100%) of the holders offust mortgages or owners of the Property. (iii) MHOA Insurance. The MHOA procures and formally resolves to maintain at its sole cost and expense, commencing no later than the City's release of all ofPVWP's landscape maintenance bonds, a policy of public liability insurance which at least meets the requir=ents of Section 5.1 (a) of the Master Declaration which reads as follows: (a) General Liability Insurance. The Master Association shall obtain a comprehensive general liability and property damage insurance policy insuring the Master Association and the Owners against liability incident to ownership or use of the Master AssociationProperty. The limits of such insurance shall not be less than $3 Million covering all claims for death, personal injury and property damage arising out of a single occurrence. The insurer issuing such insurance shall have rating by A.M. Best of "A, Class V" or better with no modified occurrences and as admitted by Best's Insurance Guide. Such insurance shall include the following additional provisions provided they are available on a commercially reasonable basis: (i) The City of Chula Vista shall be named as an additionally insured party to such insurance pursuant to the City's requirements the Master Association do so; (ii) The policy shall not contain a cross-suit exclusion clause which would abrogate coverage should litigation ensue between insureds; (iii) The policy shall contain the following severability clause (or language which is substantially the same): 4/13/06 -4- 065550~00l1 305155.1 1-28 "The coverage shall apply separately to each insured except with respect to the limits ofliability." This Section 5.1(a) may not be amended without the written consent of the City Planning Director or City AJ;torney. " The MHOA shall provide the City with a Certificate of Insurance upon procurement of the policy as set forth above. (b) Release. When all conditions precedent in Paragraph 3( a) are fulfilled, PVWP shall be released from its obligations under this Agreement, including its security and insurance requirements. PVWP acknowledges that it has a contractual obligation to perform the tenns and conditions of this Agreement until and unless released by the City from this Agreement. At least sixty (60) days prior to such transfer, PVWP shall give a notice to the City of PVWP's intent to transfer its Maintenance obligations herein and provide the City with the appropriate documents listed in Paragraph 3(a). 4. Assilmment bv MHOA and Release ofMHOA. (a) Assignment. Upon MHOA's transfer of the Maintenance obligations to a Transferee, it is intended by the parties that the Transferee shall perform the Maintenance obligations either itself or by contractors. Such transfer will release the MHOA from its obligations only if all of the following occur: (i) Transferee Acc<:;pts Obligation. The Transferee has unconditionally accepted and assumed all of the MHOA's obligations under this Agreement in writing, such assignment provides that the burden of this Agreement remains a covenant running with the land, and the assignee expressly assumes the obligations of the :tvIHOA under this Agreement. If the Transferee is an SHOA, the assignment shall also have been approved by the appropriate governing body of the SHOA by resolution or similar procedural method and approved as to form and content by the City Attorney. The City shall not unreasonably withhold its consent to such assignment. (ii) SHOA's Declaration ofRestrictions. If the Transferee is an SHOA, the City has reviewed and approved the SHOA's recorded Declaration of Restrictions to con1im1 that said document contains appropriate maintenance and insurance provisions. (iii) SHOA Insurance. The Transferee procures and formally resolves to Maintain at its sole cost and expense, a policy of public liability insurance which meets the requirements set forth in Paragraph 3 (a) (ill) above. The SHOA shall provide the City with a Certificate of Insurance upon acceptance of the transfer of the Maintenance obligations herein. 4/lJ/Q6 -5- 065550~OOll 305155.1 1-29 I I (b) Release. When all conditions precedent in Paragraph 4(a) are fulfilled, the I.'vfHOA shall be released from its obligations under this Agre=ent, including its security and insurance requir=ents. At least sixty (60) days prior to such transfer, I.'vfHOA shall give notice to the City ofl.'vfHOA's intent to transfer its Maintenance obligations herein and provide the City with the appropriate documents listed in Paragra,ph 4(a). , . 5. PVWP's Insurance. Until such time as the l.'vfHoA has obtained the general liability insurance required by Section 5.1 (a) of the Master Declaration, PVWP agrees to procure and formally resolves to maintain at its sole cost and expense, commencing no later than the date that the landscape architect of record has submitted a letter of substantial conformance pertaining to work being completed to the General Services Department and the General Services Department Director or his designee has de=ed the work complete and satisfactory, a policy of public liability insurance that would include, but is not limited to the following: General Liability Insurance. PVWP shall obtain a comprehensive general liability and property damage insurance policy insuring PVWP against liability incident to ownership or use of the Property. The limits of such insurance shall not be less than $3 Million covering all claims for death, personal injury and property damage arising out of a single occurrence. The insurer issuing such insurance shall have rating by A.M. Best "A, Class V" or better with modified occurrences and as admitted by Best's Insurance Guide. Such insurance shall include the following additional provisions provided they are available on a commercially reasonable basis: (i) The CityofChula Vista shall benarnedas an additionally insured party to such insurance pursuant to the City's requirements PVWP do so; (ii) The policy shall not contain a cross-suit exclusion clause which would abrogate coverage should litigation ensue between insureds and; (iii) The policy shall contain the following severability clause (or language which is substantially the same): "The coverage shall apply separately to each insured except with respect to the limits of liability." PVWP shall provide the City with a Certificate of Insurance upon procurement of the policy as set forth above. 6. Indemnitv. PVWP shall defend, indemnify and hold harmless the City, its officers, agents and employees, from any and all actions, suits, claims, damages to persons or property, costs including attorney's fees, penalties, obligations, errors, omissions, demands, liability, or loss of any sort (herein "claims or liabilities"), that maybe asserted or claimed by any person, firm, or entity because of or arising out of or in connection with the use, maintenance, or repair of the I.'vfHOA Maintained Public Areas. PVWP shall not have any liability under this section by reason of the Transferee's failure to maintain. 4/13/06 -6- 065550-0011305155.1 1-30 7. Indemnity If Transferee. The document whereby PVWP transfers a Maintenance obligation to a Transferee shall be signed by both PVWP and the Transferee and shall set forth an express assumption of Maintenance and other obligations hereunder and shall include the following indemnification provision: Indemnitv. The Transferee shall defend, inderrinify, and hold harmless the City, its officers, agents and employees, from any and all actions, suits, claims, damages to persons or property, costs including attorney's fees, penalties, obligations, errors, omissions, demands, liability, or loss of any sort (herein "claims or liabilities"), which result from the Transferee's failure to comply with the requirements of the obligations transferred hereby to Transferee. Transferee shall not have any liability under this Indemnity by reason of another party's failure to maintain. It is specifically intended that the City shall have the right to enforce this Indemnity. This Indemnity may not be amended without the written consent of the City Director of Planning and Building or City Attorney. 8. Agreement Binding Upon Any Successive Parties. This Agreement shall be binding upon PVWP and any successive Declarant under the Master Declaration. This Agreement shall be binding upon :MEOA and any Transferees upon transfer ofmaintenance obligations to the :MEOA or Transferee, respectively. This Agreement shall inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property. 9. Agreement Runs With the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Property and the City, its successors and assigns, and any successor-in-interest thereto. The City is deemed the beneficiary of such covenants for and in its own right and for the purposes of protecting the interest of the community and otherparties, public or private, in whose favor and for whose benefit such covenants running with the land have been provided, without regard to whether the City has been, remained or are owners of any particular land or interest therein. If such covenants are breached, the City shall have the right to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it or any other beneficiaries of this Agreement and the covenants may be entitled. 10. Governinl! Law. This Agreement shall be governed and construed in accordance with the laws of the State of California. II. Effective Date. The terms and conditions of this Agreement shall be effective as of the date this Agreement is recorded in the Official Records of the San Diego County Recorder's Office. 12. Countervarts. This Agreement may be executed in any number of counterparts, each of which shall be original and all of which shall constitute one and the same document. 4/13/06 -7- 065550-0011 305155.1 1-31 13. Recordinl!. The parties shall cause this Agre=ent to be recorded in the Official Records of the San Diego County Recorder's Office within thirty (30) days after this Agre=ent has been approved by the City Council. 14. Miscellaneous Provisions. . (a) Notices. Unless otherwise provided in this-Agreement or by law, any and all notices required or permitted by this Agre=ent or by law to be served on or delivered to either party shall be in writing and sha1l be deemed duly served, delivered and received when personally delivered to the party to whom it is directed or, in lieu thereof, when three (3) business days have elapsed following deposit in the United States mail, certified orregistered mail, retum receipt requested, first-class postage prepaid, addressed to the address indicated in this Agreement. A party may change such address for the purpose of this Paragraph by giving written notice of such change to the other party. If To City: CITY OF CHULA VISTA Department of Public Works/Engineering Division 276 Fourth Avenue Chula Vista, CA 91910 Attn: City Engineer If To PWVP LLC: PROCTOR V ALLEY WEST PARTNERS, LLC The San Miguel Ranch Company 85 Argonaut, Suite 205 Aliso Viejo, CA 92656 Attn: NIT. Stephen E. Hester (b) Captions. Captions in this Agre=ent are inserted for convenience of reference and do not define, describe or limit the scope or intent of this Agreement or any of its terms. (c) Entire Agreement. This Agre=ent, together with any other written document referred to herein, =bodythe entire agre=ent and understanding between the parties regarding the subject matter hereof, and any and all prior or contemporaneous oral or written representations, agre=ents, understandings andlorstat=ents sha1l be of no force and effect. This Agre=ent is not intended to supersede or amend any other agre=ent between the parties unless expressly noted. (d) Recitals; Exhibits. Anyrecitals set forth above and any attached exhibits are incorporated by reference into this Agreement. 4/13f(X) -8- 065550-0011 305155.1 1-32 (e) Compliance With Laws. In the performance of its obligations Wlder this Agreement, PVWP, its agents and =ployees, shall complywith any and all applicable federal, state and local rules, regulations, ordinances, policies, permits and approvals. (f) Anthority of Signatories. Each signatQry and party hereto hereby warrants and represents to the other party that it has legal authority.and capacity and direction from its principal to enter into this Agreement, and that all resolutions and/or other actions have been taken so as to enable said signatory to enter into this Agreement. (g) Modification. This Agreement may not be modified, terminated or rescinded, in whole or in part, except by written instrument duly executed and acknowledged by the parties hereto, their successors or assigns, and duly recorded in the Official Records of the San Diego County Recorder's Office. (h) Severability. If any term, covenant or condition of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or Wlenforceable, the remainder of this Agre=ent, or the application of such term, covenant or condition to person or circumstance, shall not be affected thereby and each term, covenant or condition shall be valid and be enforced to the fullest extent permitted by law. (i) Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or its attorney prepared and/or drafted this Agreement. It shall be conclusively presumed that both parties participated equally in the preparation and/or drafting of this Agreement. [REMAINDER OF PAGE lNTENTIONALL Y LEFT BLANK] 4/13/06 -9- 065550-0011305155.1 1-33 I I IN WITNESS WHEREOF, the parties hereto have caused this Agre=ent to be executed the day and year first set forth above. "City": CITY OF OlliLA VISTA, a municipal COijJOration ., , By: Stephen C. Padilla, Mayor Attest: Susan Bigelow, City Clerk APPROVED AS TO FORM: By: Ann Moore, City Attorney "PVWP": PROCTOR V ALLEY WEST PARTNERS, LLC, a Delaware limited liability company By: Trimark Pacific-Montecito, LLC, a California limited liability company By: TPH LLC, a California limited liability company, Member Manager By: Trimark Ventures, Inc., a California corporation, Its: Mem~ ~ By St~h~~ Its: Viee "r~ui>l8R-t 'E..?<'~. \(\ c...e Yll'-e~. 4/13/06 -10- 065550MOOll 305155.1 1-34 f / STATE OF CALIFORNIA ) ) ss. COUNTY OF 6 v? ,. '\V ) On ~I) ~ 7/01:, , 200_, before me, J (here insert name and title of officer), personally appeared ~v~ f) VI o-J{O I -Va b /1 L \.(~,p l€' - $--" +-fS-i-c- "" personally known to me (,Gr ~'v, cd cu me U11 tLa saris gf Eatis~ to be the person~ whose namejM1S/~subscribed to the within instrument and acknowledged to me that he/sfieflhey executed the same in his/her,'tL,,~ dIlthorized capacity~ and that by hislher/their signatureEsJ on the instrument, the persor:.ca1; or the entity upon behalf of which the person.(s}acted, executed the instrument. WITNESS my hand and official seal. Signature 9-. 7}1J../[ t ~ ~ J,WARD f ~ ~1IaIcn" ,.,_ '-71'ubac. ~ .. ~~~ Mv~....... (Seal) STATE OF CALIFORNIA ) ) ss. COUNTY OF ) On ,200_, before me, (here insert name and title of officer), personally appeared personally known to me (or 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 hislher/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. "WITNESS my hand and official seal. Signature (Seal) 4113/06 -11- 065550-0011305155.1 1-35 EXHIBIT "A" Lel!:al Description 4113/06 065550-0011 305155.1 I -:> .. :.- f, EXHIBIT "A" LEGAL DESCRIPTiON , , ALL THAT LAND INCLUSIVE OF CHULA VISTA TRACT NO. 99-04, SAN MIGUEL RANCH PLANNING AREA "J-2", ACCORDING TO MAP THEREOF NO. 15259 FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER ON FEBRUARY 8, 2006 IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA &~ #' d~ 3-go-Zoo~ / DAVID W. AMBLER L.S.7322 HUNSAKER & ASSOCIATES SAN DIEGO, INC. PAGE 1 OF 1 :DV M:\Q061\418\Legal DescriptionslA04 Esmts & Maint J-2 c.dcc WO 0061-0418 3/29/06 1-37 EXHIBIT "B" Plats Showing Public Areas To Be Privately Maintained 4/13/06 /- :;g 065550-0011305155.1 :J PI C) "- fiJ~' b$~ is ~ f;l ~;t) ~ ~ ~~ ..., .: .,,:~;":<:)' ,Q;; ~~ ~ "', 00)$ s.... -~ <:) ;/0$ I" :j !;i;J (j ~ ( \ \ \ I ~ <::; ('1 . ' 0'. .-,. 0'<- O:.z.} - 7-d- ~ ,.....<-; - 0vr; 'f-< <- 7- -' - ~ -- ...... I:-"' 7- ~~ - 7- ,,\ - <...,.@ ~ r~""""'- ...... ,\ '"XC!l~U: ~/...-, <\,.0 ~rn :;:1< '~:r. Up.. ti1 u <~ "" ~ \ ~ '0 -;' f' ~r 2. -'- ~ _~~ 0" ;..< ..... -"'1- ~ ?~O ~ ~Ie ~~ ~ '1,& ....> \11.<>-- , . " ~~: ..iJ '~ ... ~ l co .. If.. .LO'] >- / '- /'--- / /I'--r~ \ i I \ \,' I ! ,\ " ! i \ \ .I I \ \ \ I I \ . \ I <C. f ' ,~ V'lVd ,,/ I/_~J " " ~,.....,i..., ~ f' '~, --- Q: \ - ----- '* ~. "-"'C <C. rn \ - 0:. <C. ~I ___ -.1 __ --- .,.J. 41 ,....10- \, U ! W .~----Q:' --"" _ (.)-- , ~ _ \/a:: /,_!, 0:.' ! "'C _ \ /__- _ \ 0..-./ /" \ \,/ " ,,"- ''. .-/ \ ~' E-< l'ol ll:: o ,..:l ..: p ... ~ ~ . " ",(,0. ., O't !> .-v ~\,,~....\ Y < 'J,\UDP;$V Sp.~.~,S;.,G '..,>;,Y'" '\ ':: ~ , ~ ... <:i '" 'i ';, ., >- ~ , 1/ r <C. ci U ~ ~ 1.'~ ot.,'r<J. \" t..J:s.~ '! ~ '2y,~ .~ <;; ~lh - l.,~""1 i/Q: Hi ~ sO,;!: i) < ; .'\\ ,\-'39 I I I EXHIBIT "C" Maintenance Responsibilities " " City of Chula Vista Area BOA Maintenance Maintenance Parkways within those Landscaping in the parkways Maintenance of curb, gutter, portions of those public road including irrigation, trimming sidewalks and pavement. shown on Exhibit "B" and pruning of trees, and maintenance and irrigation of turf areas, and maintenance of any proj ect signage or similar proj ect monumentation. 4/13/06 065550-0011305155.1 1-40 I I THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIl,' . . . ~ r.. t . 1'-.; / /; ! '- ~ I~ )r/'--/~_(/(7 c/ Unn Modte l =1&ty Attorney Dated: 91z..s J 0 c.~ , I Grant of Easements, License and Maintenance Agreement Between the City of Chula Vista and Proctor V alley West Partners, LLC Chula Vista Tract No. 99-04 San Miguel Ranch Planning Area "K" - Bonterra 1-41 / RECORDING REQUESTED BY Ai'ID WHEN RECORDED RETURN TO: City Clerk City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 " No transfer tax is due as this is a conveyance to a public agency for less than afee interestfor which no cash consideration has been paid or received. (ABOVE SPACE FOR RECORDER'S USE) GR.A1~T OF EASEMENTS, LICENSE AND MAINTENANCE AGREEMENT CHULA VISTA TRACT NO. 99-04 SAN MIGUEL RANCH PLANNING AREA "K" - BONTERRA (DEDICATED EASEMENTS) This GRANT OF EASEMENTS, LICENSE AND .MAINTENANCE AGREEMENT ("Agreement") is made as of this _ day of ,200_, by and between the CITY OF CHULA VISTA, a municipal corporation ("City"), and PROCTOR VALLEY WEST PARTNeRS, LLC, a Delaware limited liability company ("PVWP"). RECITALS A. This Agreement concerns and affects certain improvements within portions of the real property located in Chula Vista, California, more particularly described in Exhibit" A" attached hereto and incorporated herein ("Property"). The Property is part of a planned residential development proj ect commonly known as "San Miguel Ranch", Chula Vista Tract No. 99-04, being the subject of the City Council ResolutionNo. 2001-261 (the "City Resolution"). For purposes of this Agre=ent, the term "Proj ect" shall refer to the overall San Miguel Ranch project, including, but not limited to, the "Property. " B. PVWP is the owner of the Property and the Declarant by assignment under that certain Master Declaration of Restrictions For San Miguel Ranch Master Association filed for record in the Official Records of SanDie go County, California (the "Master Declaration"). The Master Declaration provides for SAi'i MIGUEL RANCH MASTERASSOCIA TION, a CaliforniaNonprofit Mutual Benefit Corporation ("1vlHOA"), to maintain certain areas in the Proj ect. Furthermore, one or more sub- associations ("SHOA") may be formed for a particular project( s) within San Miguel Ranch Planned 4/13/06 -1- 065550~00l1 305156.1 1-42 Development, the purposes of which would include the maintenance of certain amenities within the project over which the SHOA has jurisdiction. C. The Property is or will become covered by the final map( s) (the "Final Maps ") described on Exhibit" A" attached hereto and referenced in the title of this Agreement. " " D. In order for PVWP to obtain the Final Maps and fDr the City to have assurance that the maintenance of certain areas within the Proj ect would be provided for, the City and PVWP entered into a Supplemental Subdivision Improvement Agreement pursuant to the City Resolution, in which PVWP agreed that maintenance of such areas shall be accomplished by the creation of a home owners association. The Parcels shown on Exhibit "B" attached hereto describe those particular areas which were dedicated to the public on one or more of the Final Maps but which include landscaping improvements to be maintained by the MHOA. The public areas to be maintained by the MHOA are collectively referred to as the "MHOA Maintained Public Areas." E. The City desires to grant to PVWP easements for landscape maintenance purposes upon, over and across the MHOA Maintained Public Areas as shown on Exhibit "B," in order to facilitate the obligations ofPVWP as set forth in Supplemental Subdivision Improvement Agreements, adopted pursuant to the City Resolution. F. This Agreement supplements that certain Grant ofEasements, License and Maintenance Agreement Chula Vista Tract No. 99-04 San Miguel Ranch Planning Area "K" - Bonterra recorded on February 8, 2006 as DocumentNo. 2006-0095580 which failed to show all oftheMHOAMaintained Public Areas on the attached exhibits. NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as set forth below. I. Grant of Easements. The City hereby grants to PVWP and its agents, successors and assigns, non-exclusive easements and rights-of-way over and across the MHOA Maintained Public Areas for the purpose of maintaining, repairing and replacing landscaping improvements located thereon. These grants are made without any warranties of any kind, express or implied, other than the warranty stated in Paragraph 14(1) below. 2. Maintenance Oblil!ations (a) PVWP to Initially Maintain. PVWP hereby covenants and agrees, at its sole cost and expense, to maintain, repair and replace, or cause to be maintained, repaired or replaced, those improvements within the MHOAMaintainedPublic Areas which are described on Exhibit "e" attached hereto, at a level equal to or better than the level of maintenance which is acceptable to the Director of Public Works Operations, at hislher discretion and equivalent to City or Community Facilities District maintained right-of-way facilities. For purposes of this Agreement, the term "Maintenance" or "Maintain" shall mean the maintenance, repair, the provision of water and replacement obligations described herein and on Exhibit 4/13/06 -2- 065550.0011305156.1 1-43 I / "C" hereto and shall also include repair and replacement at no cost to the City of any City owned property that is damaged during performance of the maintenance responsibilities pursuant to this Agreement. Exhibit "C" also refers to the maintenance responsibilities of the City. (b) Transfer to MHOA. Upon PVWP's trqnsfer of maintenance obligations to the MEOA, (i) the MEOA shall become obligated to ]J'6rform the obligations so transferred, , and (ii) subject to the City determining that the requirements of Paragraph 3 below have been satisfied, PVWP shall be released from such obligation. Transfer of maintenance obligations to the MEOA may be phased (that is, there may be multiple transfers). PVWP represents to City that it intends to, and has the authority to, unilaterally transfer said maintenance obligations either (i) to the MEOA and that such transfer has been provided for in the Master Declaration, and that such document(s) include the provisions described in Paragraph 3(a)(ii) below, or alternatively (ii) to a new homeowners association (the "New Association") established for maintenance of the open space and/or thoroughfare median areas in the Property, and that such transfer shall be provided for in the declaration of restrictions (the "New Declaration") for the New Association, and that such document(s) shall include the provisions described in Paragraph 3(a)(ii) below. References below in this Agreement to the "Association" shall include the New Association and "Declaration" shall include the New Declaration ifPVWP elects to form a new homeowners association for the Property. (c) Transfer By MHOA. The MEOA shall have the right to transfer Maintenance obligations to an SHOA or to the owner of an apartment project ("Transferee"). Upon the MEOA's transfer of Maintenance obligations to a Transferee, (i) the Transferee shall become obligated to perform the obligations so transferred, (ii) the MEOA shall retain the right to perform the Maintenance should the Transferee fail to do so, and (iii) the MEOA shall be released from the obligations so transferred subject to the City determining that the requirements of Paragraph 4 below have been satisfied. Although it is possible that Maintenance obligations might be transferred to an apartment owner, PVWP does not believe it is likely that Maintenance obligations will be transferred to an apartment owner. 3. Assi~nment bv PVWP and Release of PVWP (a) Assignment. Upon PVWP's transfer of the Maintenance obligations to the MEOA, it is intended by the parties that the MEOA shall perform the Maintenance obligations either itself or by contractors. Such transfer will release PVWP from its obligations only if all of the following occur: (i) MEOAAcceuts Obli~ation. The MEOAhas unconditionally accepted and assumed all of PVWP's obligations under this Agreement in writing, such assignment provides that the burden of this Agreement remains a covenant running with the land, and the assignee expressly assumes the obligations of PVWP under this Agreement. The assignment shall also have been approved by the appropriate governing bodyoftheMEOA by resolution or similar procedural method and approved 4/13/06 -3- 065550~0011305156.1 1-44 , , , as to form and content by the City Attorney. The City shall not unreasonably withhold its consent to such assignment. (ii) l'vfr!OA's Master Declaration. The City has confirmed that there have beenno modifications to the recorded Master De"laration previously approved by City, to any of the following provisions: thel'vfr!OA sl:iallb.e responsible for the maintenance of the l'vfr!OA Maintained Public Areas, the l'vfr!OA ~hall indemnify City for all claims, demands, causes of action, liability or loss related to or arising from the maintenance activities, and the l'vfr!OA shall not seek to be released by City from the maintenance obligations of this Agreement, without the prior consent of City and one hundred percent (100%) of the holders of first mortgages or owners of the Property. (iii) l'vfr!OA Insurance. The l'vfr!OA procures and formally resolves to maintain at its sole cost and expense, commencing no later than the City's release of all ofPVWP's landscape maintenance bonds, a policy of public liability insurance which at least meets the requirements of Section 5.1 (a) of the Master Declaration, which reads as follows: (a) General Liability Insurance. The Master Association shall obtain a comprehensive general liability and property damage insurance policy insuring the Master Association and the Owners against liability incident to ownership or use of the Master Association Property. The limits of such insurance shall not be less than $3 Million covering all claims for death, personal injury and property damage arising out of a single occurrence. The insurer issuing such insurance shall have rating by A.M. Best of "A, Class V" or better with no modified occurrences and as admitted by Best's Insurance Guide. Such insurance shall include the following additional provisions provided they are available on a commercially reasonable basis: (i) The CityofChula Vista shall be named as an additionally insured party to such insurance pursuant to the City's requirements the Master Association do so; (ii) The policy shall not contain a cross-suit exclusion clause which would abrogate coverage should litigation ensue between insureds; (iii) The policy shall contain the following severability clause (or language which is substantially the same): "The coverage shall apply separately to each insured except with respect to the limits of liability." 4/13/06 -4- 065550-0011305156.1 1-45 , , , This Section 5.1 (a) may not be amended without the written consent of the City Planning Director or City Attorney. The iVlHOA shall provide the City with a Certificate of Insurance upon procurement of the policy as set forth above. : , (b) Release. When all conditions precedent in P~ragraph 3( a) are fulfilled, PVWP shall be released from its obligations under this Agre=ent, including its security and insurance requirements. PVWP acknowledges that it has a contractual obligation to perform the terms and conditions ofthis Agreement until and unless released by the City from this Agreement. At least sixty (60) days prior to such transfer, PVWP shall give a notice to the City of PVWP's intent to transfer its Maintenance obligations herein and provide the City with the appropriate documents listed in Paragraph 3(a). 4. Assignment bv MHOA and Release of MHOA. (a) Assignment. Upon iVlHOA's transfer of the Maintenance obligations to a Transferee, it is intended by the parties that the Transferee shall perform the Maintenance obligations either itself or by contractors. Such transfer will release the iVlHOA from its obligations only if all of the following occur: (i) Transferee Accents Obligation. The Transferee has unconditionally accepted and assumed all of the iVlHOA's obligations under this Agreement in writing, such assignment provides that the burden of this Agreement remains a covenant running with the land, and the assignee expressly assumes the obligations of the iVlHOA under this Agreement. If the Transferee is an SHOA, the assignment shall also have been approved by the appropriate governing body of the SHOA by resolution or similar procedural method and approved as to form and content by the City Attorney. The City shall not unreasonably withhold its consent to such assignment. (ii) SHOA's Declaration ofRestrictions. If the Transferee is an SHOA, the City has reviewed and approved the SHOA's recorded Declaration of Restrictions to confirm that said document contains appropriate maintenance and insurance provisions. (iii) SHOA Insurance. The Transferee procures and formally resolves to Maintain at its sole cost and expense, a policy of public liability insurance which meets the requirements set forth in Paragraph 3 (a) (ili) above. The SHOA shall provide the City with a Certificate of Insurance upon acceptance of the transfer of the Maintenance obligations herein. (b) Release. When all conditions precedent in Paragraph 4(a) are fulfilled, the iVlHOA shall be released from its obligations under this Agreement, including its security and insurance requirements. At least sixty (60) days prior to such transfer, iVlHOA shall give notice 4113/06 -5- 065550-0011305156.1 1-46 I f to the City ofiYIHOA's intent to transfer its Maintenance obligations herein and provide the City with the appropriate documents listed in Paragraph 4(a). 5. PVWP's Insurance. Until such time as the MHOA has obtained the general liability insurance required by Section 5.1 (a) of the Master Declaration, PVWP agrees to procure and formally resolves to maintain at its sole cost and expense, commencing 00 later than the date that the landscape architect of record has submitted a letter of substantial conformance pertaining to work being completed to the General Services Department and the General Services Department Director or his designee has deemed the work complete and satisfactory, a policy of public liability insurance that would include, but is not limited to the following: General Liabilitv Insurance. PVWP shall obtain a comprehensive general liability and property damage insurance policy insuring PVWP against liability incident to ownership or use of the Property. The limits of such insurance shall not be less than $3 Million covering all claims for death, personal injury and property damage arising out of a single occurrence. The insurer issuing such insurance shall have rating by A.M. Best "A, Class V" or better with modified occurrences and as admitted by Best's Insurance Guide. Such insurance shall include the following additional provisions provided they are available on a commercially reasonable basis: (i) The CityofChula Vista shall be named as an additionally insured party to such insurance pursuant to the City's requirements PVWP do so; (ii) The policy shall not contain a cross-suit exclusion clause which would abrogate coverage should litigation ensue between insureds and; (iii) The policy shall contain the following severability clause (or language which is substantially the same): "The coverage shall apply separately to each insured except with respect to the limits of liability." PVvVP shall provide the City with a Certificate of Insurance upon procurement of the policy as set forth above. 6. Indemnity. PVWP shall defend, indemnify and hold harmless the City, its officers, agents and employees, from any and all actions, suits, claims, damages to persons or property, costs including attorney's fees, penalties, obligations, errors, omissions, demands, liability, or loss of any sort (herein "claims or liabilities"), that may be asserted or claimed by any person, finn, or entity because of or arising out of or in connection with the use, maintenance, or repair of the iYlHOA Maintained Public Areas. PVWP shall not have any liability under this section by reason of the Transferee's failure to maintain. 7. Indemnity If Transferee. The document whereby PVWP transfers a Maintenance obligation to a Transferee shall be signed by both PVWP and the Transferee and shall set forth an express assumption of Maintenance and other obligations hereunder and shall include the following indemnification provision: 4/13fQ6 -6- 065550-0011 305156.1 1-47 f f Indemnity. The Transferee shall defend, indemnify, and hold hannless the City, its officers, agents and employees, from any and all actions, suits, claims, damages to persons or property, costs including attorney's fees, penalties, obligations, errors, omissions, demands, liability, or loss of any sort (herein "claims or liabilities"),whichresult from the T,ransferee's failure to comply with the requirements of the obligations transferred hereby to Transferee. , Transferee shall not have any liability under this Indemnity by reason of another party's failure to maintain. It is specifically intended that the City shall have therightto enforce this Indemnity. This Indemnity may not be amended without the written consent of the City Director of Planning and Building or City Attorney. 8. Agreement Bindinl;1 U non Anv Successive Parties. This Agreement shall be binding upon PVWP and any successive Declarant under the Master Declaration. This Agreement shall be binding upon MHOA and any Transferees upon transfer of maintenance obligations to the MHOA or Transferee, respectively. This Agreement shall inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property. 9. Agreement Runs With the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Property and the City, its successors and assigns, and any successor-in-interest thereto. The City is deemed the beneficiary of such covenants for and in its own right and for the purposes of protecting the interest of the community and other parties, public or private, in whose favor and for whose benefit such covenants running with the land have been provided, without regard to whether the City has been, remained or are owners of any particular land or interest therein. If such covenants are breached, the City shall have the right to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it or any other beneficiaries of this Agreement and the covenants may be entitled. 10. Governinl! Law. This Agreement shall be governed and construed in accordance with the laws of the State of California. 11. Effective Date. The terms and conditions of this Agreement shall be effective as of the date this Agreement is recorded in the Official Records of the SanDiego County Recorder's Office. 12. Counternarts. This Agreement may be executed in any number of counterparts, each of which shall be original and all of which shall constitute one and the same document. 13. Recordinl!. The parties shall cause this Agreement to be recorded in the Official Records of the San Diego County Recorder's Office within thirty (30) days after this Agreement has been approved by the City Council. 4113/06 -7- 065550-0011 305156.1 1-48 , , 14. Miscellaneous Provisions. (a) Notices. Unless otherwise provided in this Agreement or by law, any and all notices required or permitted by this Agreement or by law to be served on or delivered to either party shall be in writing and shall be deemed duly Served, delivered and received when personally delivered to the party to whom it is directed !'l::; in lieu thereof, when three (3) business days have elapsed following deposit in the United'States mail, certified orregistered mail, return receipt requested, first-class postage prepaid, addressed to the address indicated in this Agreement. A party may change such address for the purpose of this Paragraph by giving written notice of such change to the other party. If To City: CITY OF CHULA VISTA Department of Public WorkslEngineering Division 276 Fourth Avenue Chula Vista, CA 91910 Attn: City Engineer If To PVWP: PROCTOR VALLEY WEST PARTNERS, LLC The San Miguel Ranch Company 85 Argonaut, Suite 205 Aliso Viejo, CA 92656 Attn: Mr. Stephen E. Hester (b) Captions. Captions in this Agreement are inserted for convenience of reference and do not define, describe or limit the scope or intent of this Agreement or any of its terms. (c) Entire Agreement. This Agreement, together with any other written document referred to herein, embody the entire agreement and understanding between the parties regarding the subj ect matter hereof, and any and all prior or contemporaneous oral or written representations, agreements, understandings and/or statements shall be of no force and effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. (d) Recitals; Exhibits. Any recitals set forth above and any attached exhibits are incorporated by reference into this Agreement. (e) Compliance With Laws. In the performance of its obligations under this Agreement, PVWP, its agents and employees, shall comply with any and all applicable federal, state and local rules, regulations, ordinances, policies, permits and approvals. 4/13/06 -8- 065550-0011 305156.1 1-49 ! (f) Authority of Signatories. Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions and/or other actions have been taken so as to enable said signatory to enter into this Agreement. (g) Modification. This Agre=ent may no! be \llodified, terminated or rescinded, in whole orin part, except by written instrument duly execut~d and acknowledged by the parties hereto, their successors or assigns, and duly recorded in the Official Records ofthe SanDiego County Recorder's Office. (h) Severability. If any term, covenant or condition of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term, covenant or condition to person or circumstance, shall not be affected thereby and each term, covenant or condition shall be valid and be enforced to the fullest extent permitted by law. (i) Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or its attorney prepared and/or drafted this Agreement. It shall be conclusively presumed that both parties participated equally in the preparation and/or drafting of this Agreement. [RElY1AINDER OF PAGE INTENTIONALLY LEFT BLANK] 4/13/06 -9- 065550.0011305156.1 1-50 , ! IN WITNESS WHEREOF, the parties hereto have caused this Agre=ent to be executed the day and year first set forth above. "City": CITY OF CHULA VIS1' A,~a municipal corporation . By: Stephen C. Padilla, Mayor Attest: Susan Bigelow, City Clerk APPROVED AS TO FORM: By: Ann Moore, City Attorney npvwp": PROCTOR VALLEY WEST P ARINERS, LLC, a Delaware limited liability company By: TrimarkPacific-Montecito, LLC, a California limited liability company By: TPH LLC, a California limited liability company, Member Manager By: Trimark Ventures, Inc., a California corporation, Its: Member By s:$~~k Stephen . Hester Its: ~{i\.-"" FJ.I",,;,~dGuL n t Y:::.ee.. \1.\ <:..-e.... ,"'"...-e"7. 4/13/06 -10- 065550-0011305156.1 1 -51 STATE OF CALIFORNIA ) _.; ) ss. COUNTY OF {) r .'\. 1\.J('-' ) - " On 'i / 21 /t)'" ,200_, before me, 0. VV'[t.i--J, VI ~ Tzt Ii i-f fel ~ 11'-- (here insert name and title of officer), personally appeared \ (..$-1' tJ 0J V'_ c;- ++' s" -tC '-- , J personally known to me (or prgH~a ts me Sf" tl", La';' of sal;,fad6f)' 8'{Wf>l1rf>) to be the perso~ whose nameksJls;)>re subscribed to the within instrument and acknowledged to me that he/~ executed the same in his/her7'tlle"rr authorized capacity(i.eS), and that by his/h",/thc;' signature('s)On the instrument, the person(5t or the entity upon behalf of which the person(g)acted, executed the instrument. W1TNESS my hand and ofpcial seal. Signature (=1 .1['1 t)J[ (~ lJ @ J. WN/O _ Ccmmlslion # 1412.4l1i ~ .. NclaryI'Ul:ll:.Cclb.... Clanp CounI\t Ittc.nm. ......... (Seal) STATE OF CALIFORNIA ) ) ss. COUNTY OF ) On ,200_, before me, (here insert name and title of officer), personally appeared personally known to me (or 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. W1TNESS my hand and official seal. Signature (Seal) 4/13/06 -11- 065550-0011305156.1 1-52 EXHIBIT "A" Lel!al Descrivtion 4/13/06 065550-0011305156.1 I-53 EXHIBIT "A" LEGAL DESCRIPTION ., ALL THAT LAND INCLUSIVE OF CHULA VISTA TRACT NO. 99-04, SAN MIGUEL RANCH PLANNING AREA "K", ACCORDING TO MAP THEREOF NO. 15260 FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER ON FEBRUARY 8, 2006 IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA. fl~h//~~ 3-30-2006 " DAVID W. AMBLER LS. 7322 HUNSAKER & ASSOCIATES SAN DIEGO, INC. PAGE 1 OF 1 :ov M:\0270\081\Legal Descriptions\J\04 Esmts & Maint K c.doc WO 0270-0081 3129106 1-54 EXHIBIT "B" Plats Showing Public Areas To Be Privately Maintained 4/13/06 1 r.' ~/'. ! - ":)? 065550-0011 305156.1 Z IJ3HS J3S < ~ ~ < ~ I.ol ~ o u , , ~~\ ~~ <:" o \ Q ~ C"';r. '\ D c;) ci ~ ;"".1 4~ 4<-~ COol Z<'<\Q '~W~ t;~iZ , <M<O O::.~ OZ ~SZo.... <::!-<. <- Z~ ~Z --z:. ~ ><,j U;c., :'1 ~ ~ U (/ W ..l "" U Vl --- ..... ~ , ~ ---.~~ -..i-- U-l ~ .....-----0:. t', , ", '-' q '" \ g ~ ... '" '" ." ~ , "" , ~ iD. .,., ~ ~ "" ~ I. C?'?-- "'" - ~<. .(.;:. o ct. ::c ~ <C"\ ~~O~ ::. 'j 7-...... h C2.:z.:. ~t-ZW ~. .; L f" ".... ~. -; ~ ~~--- '~ r.r. 0- 'r./) X-'r"\ h'\ '7 uJ -<if; ..J<. -,:)--- ';:C p: U .~ .~ '0 "" c, <; -~ , ~ '6\ i! ~.. ,., ~~~ \r\' 0't;~ \t s< ~ i" J; 8w - \ <- cd U 0::. ~ 'l . , ~~ \)" ~'~ ...... - o :.) , ~ c-. - c-.< .~ Oct. ~ ,?-.~ ("\ ~t-o~ ~ U 0 ~ <.~("1 ~~~t e<<~ ~;.-<....J~ .... r.n ~ r/; X>~ ~ \.ll <(/J ..J<. ....., - ~- '~ c... U .... o \ ~ ~C'~ 0.._ U\~ OZ~tn :2.<, N .......<I.C ;0,.....-, ~..... t,;"'~ <t;;. <'.6 9"0 .~Z e""<(:i_ -';;. ~c.. :'<~Z~ ?hzz::;, ><~ t'1- :5 :.... ';:> - .., n ~ \ \ "- ~ <- co V; / / ,/ .~-' /' -~...-~" ./". /-~. / - - ----I -- ! I ",/ " i.--- !/ -#-4-~-._ . - I <- cd (.,;) ~ SV.Lnot:flI't. f;"'''I~~ t J.J3f1S JJS ~ i-51 '" g .. ... o '" ~ \ ., \ 0, "" c, ~ N ~- <> ~ ~ '" v, s " ~. i: ,,:s ~ 1 ! ~ ~""~ \1\ '" <0. "\ ~ '''\Q; h fl ~.~.~... _~.. fI. /" II \\\ \ i EXHIBIT "C" Maintenance Responsibilities " ..' City ofChula Vista Area MHOA Maintenance Maintenance Parkways within those Landscaping in the parkways, Maintenance of curb, gutter, portions of those public roads including irrigation, trimming sidewalks and pavement. shown on Exhibit "B" and pruning of trees, and maintenance and irrigation of turf areas; and maintenance of any proj ect signage or similar project monumenta- tion 4/13/06 065550-00li 305156.1 1-58 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON AFPROY AL BY THE CITY COUNC~' . , .~ I '/ Dated: 9/7- r: / () ~ I { Grant of Easements, License and Maintenance Agreement Between the City of Chula Vista and Proctor Valley West Partners, LLC Chula Vista Tract No. 99-04 San Miguel Ranch Planning Area "L" - Maravilla 1-59 I , RECORDING REQUESTED BY Ai'lD WHEN RECORDED RETURN TO: City Clerk City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 , , No transfer tax is due as this is a conveyance to a public agency for less than a fee interest for which no cash consideration has been paid or received. (ABOVE SPACE FOR RECORDER'S USE) GRANT OF EASEMENTS, LICENSE AND MAINTENA1~CE AGREEMENT CHULA VISTA TRACT NO. 99-04 SAN MIGUEL RANCH PLANNING AREA "L" - MARAVILLA (DEDICATED EASEMENTS) This GRANT OF EASEMENTS, LICENSE AND MAlNTENAt'\1CE AGREEMENT ("Agreement") is made as of this _ day of , 200_, by and between the CITY OF CHULA VISTA, a municipal corporation ("City"), and PROCTOR VALLEY WEST PARTNERS, LLC, a Delaware limited liability company ("PVWP"). RECITALS A. This Agre=ent concerns and affects certain improv=ents with portions of the real property located in Chula Vista, California, more particularly described in Exhibit" A" attached hereto and incorporated herein ("Property"). The Property is part of a planned residential development project commonly known as "San Miguel Ranch", Chula Vista Tract No. 99-04, being the subj ect of the City Council ResolutionNo. 2001-261 (the "City Resolution"). For purposes of this Agreement, the term "Proj ect" shall refer to the overall San Miguel Ranch project, including, but not limited to the "Property." B. PVWP is the owner of the Property and the Declarant by assignment under that certain Master Declaration of Restrictions For San Miguel Ranch Master Association filed for record in the Official Records of San Diego County, California (the "Master Declaration"). The Master Declaration provides for SAN MIGUEL RANCH MASTER ASSOCIATION, a California Nonprofit Mutual Benefit Corporation ("MHOA") to maintain certain areas in the Project. Furthermore, one or more sub- associations may be formed (" SHOA") for a particular proj ect( s) within San Miguel Ranch Planned 4113/06 -1- 065550-0011305157.1 1-60 I I Development, the pmposes of which would include the maintenance of certain amenities within the project over which the SHOA has jurisdiction. C. The Property is or will become covered by that the certain final map(s) (the "Final Maps") described on Exhibit" A" attached hereto and referep.ced in the title to this Agreement. " D. In order for PVWP to obtain the Final Maps and fOr the City to have assurance that the maintenance of certain areas within the Proj ect would be provided for, the City and PVWP entered into a Supplemental Subdivision Improvement Agreement pursuant to the City Resolution, in which PVWP agreed that maintenance of such areas shall be accomplished by the creation of a home owners association. The Parcels shown on Exhibit "B" attached hereto describe those particular areas which were dedicated to the public on one or more of the Final Maps but which include landscaping improvements to be maintained by the MHOA. The public areas to be maintained by the MHOA are collectively referred to as the "MHOA Maintained Public Areas." E. The City desires to grant to PVWP easements for landscape maintenance purposes upon, over and across the MHOA Maintained Public Areas as shown on Exhibit "B," in order to facilitate the obligations ofPVWP as set forth in Supplemental Subdivision Improv=ent Agreements, adopted pursuant to the City Resolution. F. This Agreement suppl=ents that certain Grant ofEas=ents, License and Maintenance Agreement Chula Vista Tract No. 99-04 San Miguel Ranch Planning Area "L" - Maravilla recorded on February 8, 2006 as Document No. 2006-0095588 which failed to show all of the MHOA Maintained Public Areas on the attached exhibits. NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as set forth below. 1. Grant of Easements. The City hereby grants to PVWP and its agents, successors and assigns, non-exclusive easements and rights-of-way over and across the MHOA Maintained Public Areas for the pmpose of maintaining, repairing and replacing landscaping improv=enls located thereon. These grants are made without any warranties of any kind, express or implied, other than the warranty stated in Paragraph 14(f) below. 2. Maintenance Oblh!:ations (a) PVWP to Initially Maintain. PVWP hereby covenants and agrees, at its sole cost and expense, to maintain, repair and replace, or cause to be maintained, repaired or replaced, those improv=enls within the MHOA Maintained Public Areas which are described on Exhibit "e" attached hereto, at a level equal to or better than the level of maintenance which is acceptable to the Director of Public Works Operations, at hislher discretion and equivalent to City or Community Facilities District maintained right-of-way facilities. For pmposes of this Agreement, the term "Maintenance" or "Maintain" shall mean the maintenance, repair, the provision of water and replac=ent obligations described herein and on Exhibit 4/13/06 -2- 065550-0011305157.1 1-61 I ! "C" hereto and shall also include repair and replac=ent at no cost to the City of any City owned property that is damaged during performance of the maintenance responsibilities pursuant to this Agreement. Exhibit "C" also refers to the maintenance responsibilities of the City. (b) Transfer to IVlliOA. Upon PVWP tran~fer of maintenance obligations to the NfHOA, (i) the MHOA shall become obligated to perfa'rmthe obligations so transferred, and , (ii) subject to the City determining that the requirements MParagraph 3 below have been satisfied, PVWP shall be released from such obligation. Transfer of maintenance obligations to the NfHOA maybe phased (that is, there maybe multiple transfers). PVWP represents to City that it intends to, and has the authority to, unilaterally transfer said maintenance obligations either (i) to the MHOA and that such transfer has been provided for in the Master Declaration, and that such document(s) include the provisions described in Paragraph 3(a)(ii) below, or alternatively (ii) to a new homeowners association (the "New Association") established for maintenance of the open space and thoroughfare median areas in the Property, and that such transfer shall be provided for in the declaration of restrictions (the "New Declaration") for the New Association, and that such document(s) shall include the provisions described in Paragraph 3(a)(ii) below. References below in this Agreement to the "Association" shall include the New Association and "Declaration" shall include the New Declaration ifPVWP elects to form a new homeowners association for the Property. (c) Transfer By MEOA. The MHOA shall have the rightto transfer Maintenance obligations to a sub-association ("SHOA") or to the owner of an apartment project ("Transferee"). Upon the MHOA's transfer of Maintenance obligations to a Transferee, (i) the Transferee shall become obligated to perform the obligations so transferred, (ii) the MHOA shall retain the right to perform the Maintenance should the Transferee fail to do so, and (iii) the NfHOA shall be released from the obligations so transferred subject to the City determining that the requirements of Paragraph 4 below have been satisfied. Although it is possible that Maintenance obligations might be transferred to an apartment owner, PVWP does not believe it is likely that Maintenance obligations will be transferred to an apartment owner. 3. Assi~nment bv PVWP. LLC and Release of PVWP (a) Assignment. Upon PVWP's transfer of the Maintenance obligations to the MHOA, it is intended by the parties that the MHOAshall perform the Maintenance obligations either itself or by contractors. Such transfer will release PVWP from its obligations only if all of the following occur: (i) MHOAAccents Obligation. The NfHOAhas unconditionally accepted and assumed all of PVWP's obligations under this Agreement in writing, such assignment provides that the burden of this Agre=ent remains a covenant running with the land, and the assignee expressly assumes the obligations of PVWP under this Agreement. The assignment shall also have been approved by the appropriate governing body of the MHOA by resolution or similar procedural method and approved 4/13/06 -3- 065550-0011305157.1 1-62 / as to form and content by the City Attorney. The City shall not umeasonablywithhold its consent to such assignment. (ii) MHOA's Master Declaration. The City has con:tinned that there have beenno modifications to the recorded Master Dee;laration previously approved by City, to any of the following provisions: the MHOA sHall b,e responsible for the maintenance of the MHOA Maintained Public Areas, the MHOA ~hall indemnify City for all claims, demands, causes of action, liability or loss related to or arising from the maintenance activities, and the MHOA shall not seek to be released by City from the maintenance obligations of this Agre=ent, without the prior consent of City and one hundred percent (100%) of the holders offust mortgages or owners of the Property. (iii) MHOA Insurance. The MHOA procures and formally resolves to maintain at its sole cost and expense, commencing no later than the City's release of all ofPVWP's landscape maintenance bonds, a policy of public liability insurance which at least meets the requirements of Section 5.1 (a) of the Master Declaration which reads as follows: (a) General Liability Insurance. The Master Association shall obtain a comprehensive general liability and property damage insurance policy insuring the Master Association and the Owners against liability incident to ownership or use of the Master AssociationProperty. The limits of such insurance shall not be less than $3 Million covering all claims for death, personal injury and property damage arising out of a single occurrence. The insurer issuing such insurance shall have rating by AM. Best of "A, Class V" or better with no modified occurrences and as admitted by Best's Insurance Guide. Such insurance shall include the following additional provisions provided they are available on a commercially reasonable basis: (i) The City of Chula Vista shall be named as an additionally insured party to such insurance pursuant to the City's requirements the Master Association do so; (ii) The policy shall not contain a cross-suit exclusion clause which would abrogate coverage should litigation ensue between insureds; (iii) The policy shall contain the following severability clause (or language which is substantially the same): 4/13/06 -4- 065550-0011305157.1 1-63 "The coverage shall apply separately to each insured except with respect to the limits of liability." This Section 5.1(a) may not be amended without the written consent of the City Planning Director or City Attorney. " The MEOA shall provide the City with a Certificate of Insurance upon procurement of the policy as set forth above. (b) Release. When all conditions precedent in Paragraph 3( a) are fulfilled, PVWP shall be released from its obligations under this Agreement, including its security and insurance requirements. PVWP acknowledges that it has a contractual obligation to perform the terms and conditions of this Agreement until and unless released by the City from this Agreement. At least sixty (60) days prior to such transfer, PYWP shall give a notice to the City of PYWP's intent to transfer its Maintenance obligations herein and provide the City with the appropriate documents listed in Paragraph 3(a). 4. Assignment bv MHGA and Release of MEGA. (a) Assignment. Upon MEGA's transfer of the Maintenance obligations to a Transferee, it is intended by the parties that the Transferee shall perform the Maintenance obligations either itself or by contractors. Such transfer will release the MEOA from its obligations only if all of the following occur: (i) Transferee Acce1;)ts Obligation. The Transferee has unconditionally accepted and assumed all of the MEOA's obligations under this Agreement in writing, such assignment provides that the burden of this Agrement remains a covenant running with the land, and the assignee expressly assumes the obligations ofthe lYIHOA under this Agreement. If the Transferee is an SHOA, the assignment shall also have been approved by the appropriate governing body of the SHOA by resolution or similar procedural method and approved as to form and content by the City Attorney. The City shall not unreasonably withhold its consent to such assignment. (ii) SHOA's Declaration of Restrictions. If the Transferee is an SHOA, the City has reviewed and approved the SHOA's recorded Declaration of Restrictions to confirm that said document contains appropriate maintenance and insurance provisions. (iii) SHOA Insurance. The Transferee procures and formally resolves to Maintain at its sole cost and expense, a policy of public liability insurance which meets the requirments set forth in Paragraph 3 (a) (ill) above. The SHOA shall provide the City with a Certificate of Insurance upon acceptance of the transfer of the Maintenance obligations herein. 4/13/06 -5- 065550-0011 305157.1 1-64 (b) Release. When all conditions precedent in Paragraph 4(a) are fulfilled, the i\1HOA shall be released from its obligations under this Agreement, including its security and insurance requirements. At least sixty (60) days prior to such transfer, i\1HOA shall give notice to the City ofi\1HOA's intent to transfer its Maintenance obligations herein and provide the City with the appropriate documents listed in Paragrl\ph 4(a). . , 5. PVWP's Insurance. Until such time as the i\1HOAhas obtained the general liability insurance required by Section 5 .1 (a) of the Master Declaration, PVWP agrees to procure and formally resolves to maintain at its sole cost and expense, commencing no later than the date that the landscape architect of record has submitted a letter of substantial conformance pertaining to work being completed to the General Services Department and the General Services Department Director or his designee has deemed the work complete and satisfactory, a policy of public liability insurance that would include, but is not limited to the following: General Liability Insurance. PVWP shall obtain a comprehensive general liability and property damage insurance policy insuring PVWP against liabilityincidentto ownership oruse of the Property. The limits of such insurance shall not be less than $3 Million covering all claims for death, personal injury and property damage arising out of a single occurrence. The insurer issuing such insurance shall have rating by A.M. Best "A, Class V" or better with modified occurrences and as admitted by Best's Insurance Guide. Such insurance shall include the following additional provisions provided they are available on a commercially reasonable basis: (i) The CityofChula Vista shall be named as an additionally insured party to such insurance pursuant to the City's requirements PVWP do so; (ii) The policy shall not contain a cross-suit exclusion clause which would abrogate coverage should litigation ensue between insureds and; (iii) The policy shall contain the following severability clause (or language which is substantially the same): "The coverage shall apply separately to each insured except with respect to the limits ofliability." PVWP shall provide the City with a Certificate of Insurance upon procurement of the policy as set forth above. 6. Indemnitv. PVWP shall defend, indemnify and hold harmless the City, its officers, agents and employees, from any and all actions, suits, claims, damages to persons or property, costs including attorney's fees, penalties, obligations, errors, omissions, demands, liability, or loss of any sort (herein" claims or liabilities"), that may be asserted or claimed by any person, firm, or entity because of or arising out of or in connection with the use, maintenance, or repair of the i\1HOA Maintained Public Areas. PVWP shall not have any liability under this section by reason of the Transferee's failure to maintain. 4/13/06 -6- 065550.0011305157.1 1-65 , ! 7. Indemnity If Transferee. The document whereby PVWP transfers a Maintenance obligation to a Transferee shall be signed by both PVWP and the Transferee and shall set forth an express assumption of Maintenance and other obligations hereunder and shall include the following indemnification provision: Indemnitv. The Transferee shall defend, inderimify, and hold harmless the City, its officers, agents and employees, from any and all actions, suits, claims, damages to persons or property, costs including attorney's fees, penalties, obligations, errors, omissions, demands, liability, or loss of any sort (herein "claims or liabilities"),which result from the Transferee's failure to comply with the requirements of the obligations transferred hereby to Transferee. Transferee shall not have any liability under this Indemnity by reason of another party's failure to maintain. It is specifically intended that the City shall have the right to enforce this Indemnity. This Indemnity may not be amended without the written consent of the City Director of Planning and Building or City Attorney. 8. Agreement Binding Upon Any Successive Parties. This Agreement shall be binding upon PVWP and any successive Declarant under the Master Declaration. This Agreement shall be binding upon MHOA and any Transferees upon transfer of maintenance obligations to the MHOA or Transferee, respectively. This Agreement shall inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property. 9. Agreement Runs With the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Property and the City, its successors and assigns, and any successor-in-interest thereto. The City is deemed the beneficiary of such covenants for and in its own right and for the purposes of protecting the interest ofthe community and other parties, public or private, in whose favor and for whose benefit such covenants running with the land have been provided, without regard to whether the City has been, remained or are owners of any particular land or interest therein. If such covenants are breached, the City shall have the right to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it or any other beneficiaries of this Agreement and the covenants may be entitled. 10. Governin~ Law. This Agreement shall be governed and construed in accordance with the laws of the State ofCalifomia. 11. Effective Date. The terms and conditions of this Agreement shall be effective as of the date this Agreement is recorded in the Official Records of the San Diego County Recorder's Office. 12. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be original and all of which shall constitute one and the same document. 4113/06 -7- 065550-0011 305157.1 1-66 , f 13. Recordinl!. The parties shall cause this Agre=ent to be recorded in the Official Records of the San Diego County Recorder's Office within thirty (30) days after this Agreement has been approved by the City Council. 14. Miscellaneous Provisions. " ',.... (a) Notices. Unless otherwise provided in this 'Agreement or by law, any and all notices required or permitted by this Agre=ent or by law to be served on or delivered to either party shall be in writing and shall be deemed duly served, delivered and received when personally delivered to the party to whom it is directed or, in lieu thereof, when three (3) business days have elapsed following deposit in the United States mail, certified orregistered mail, return receipt requested, first-class postage prepaid, addressed to the address indicated in this Agreement. A party may change such address for the purpose of this Paragraph by giving written notice of such change to the other party. If To City: CITY OF CHULA VISTA Department of Public Works/Engineering Division 276 Fourth Avenue Chula Vista, CA 91910 Attn: City Engineer If To PWVP LLC: PROCTOR VALLEY WEST PARTNERS, LLC The San Miguel Ranch Company 85 Argonaut, Suite 205 Aliso Viejo, CA 92656 Attn: Mr. Stephen E. Hester (b) Captions. Captions in this Agreement are inserted for convenience of reference and do not define, describe or limit the scope or intent of this Agreement or any of its terms. (c) Entire Agreement. This Agre=ent, together with any other written document referred to herein, embody the entire agre=ent and understanding between the parties regarding the subject matter hereof, and any and all prior or contemporaneous oral or written representations, agreements, understandings and/or statements shall be of no force and effect. This Agre=ent is not intended to supersede or amend any other agre=ent between the parties unless expressly noted. (d) Recitals; Exhibits. Any recitals set forth above and any attached exhibits are incorporated by reference into this Agreement. 4/13/06 -8- 065550-0011305157.1 1-67 , i (e) Compliance With Laws. In the performance of its obligations under this Agreement, PVWP, its agents and employees, shall complywith any and all applicable federal, state and local rules, regulations, ordinances, policies, permits and approvals. (f) Authority of Signatories. Each signatqry and party hereto hereby warrants and represents to the other party that it has legal authcirity ,and capacity and direction from its principal to enter into this Agre=ent, and that all reso'1utions and/or other actions have been taken so as to enable said signatory to enter into this Agreement. (g) Modification. This Agreement may not be modified, terminated or rescinded, in whole or in part, except by written instrument duly executed and acknowledged by the parties hereto, their successors or assigns, and duly recorded in the Official Records ofthe SanDiego County Recorder's Office. (h) Severability. If any term, covenant or condition of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the r=ainder of this Agreement, or the application of such term, covenant or condition to person or circumstance, shall not be affected thereby and each term, covenant or condition shall be valid and be enforced to the fullest extent permitted by law. (i) Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or its attorney prepared and/or drafted this Agreement. It shall be conclusively presumed that both parties participated equally in the preparation and/or drafting of this Agreement. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 41l3/06 -9- 065550-0011305157.1 1-68 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first set forth above. "City": CITY OF CHULA VISTA, a municipal co;rporation "t' By: Stephen C. Padilla, Mayor Attest: Susan Bigelow, City Clerk APPROVED AS TO FOR.t\1: By: Ann Moore, City Attorney "PVWP": PROCTOR VALLEY WEST PARTNERS, LLC, a Delaware limited liability company By: Trimark Pacific-Montecito, LLC, a California limited liability company By: TPH LLC, a California limited liability company, M=ber Manager By: Trimark Ventures, Inc., a California corporation, Its: Member By ~e:~5A])\- Its: v~\o"" PI ...,J.~d"ll't E:: (":~. \Ii c....-e. ?.r-ec;. 4/13/06 -10- 065550-0011305157.1 1-69 STATE OF CALIFORNIA ) ) ss. COUNTY OF D ( if.- r-. kc/ ) On G[ 11/ '1 I Db, 200-, before me)' Notary Public in and for said State, personally appeared vJiJ.-vr;( J'-f[/41 n 0 -\ 6t . IV P "_ lo ~, '-- 7. +r\'-k'~ '. , personally known to me (Ol'lnvvCd [Q me on me "",;, vI,,,l;,I,,dvlY cYldeucc) to be the person~ whose nam~s/~ubscribed to the within instrument and acknowledged to me that he/.srf>I1;1J,...y executed the same in his/her1U1elrauthorized capacityY4 and that by his/her/t.astl signature.(l;-)-on the instrument, the personks), or the entity upon behalf of which the perso~cted, executed the instrument. WITNESS ml}and.and offi..f;:ial seal. Q-:;7, VL \ S. tur ...! t/ t/"--- 19na e (; l~- ~~~; -1 ...~~~~;J - - - (Seal) STATE OF CALIFORNIA ) ) ss. COUNTY OF ) On ,200_, before me, Notary Public in and for said State, personally appeared personally known to me (or 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. WITNESS my hand and official seal. Signature (Seal) 4/13/06 -11- 065550-0011 305157.1 1-70 EXHIBIT" A" Lel!aI Description 4/13/06 065550-0011305157.1 1_ . J J , 'I , I EXHIBIT "A" LEGAL DESCRIPTI~.N . " ALL THAT LAND INCLUSIVE OF CHULA VISTA TRACT NO. 99-04, SAN MIGUEL RANCH PLANNING AREA "L', ACCORDING TO MAP THEREOF NO. 15261 FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER ON FEBRUARY 8, 2006 IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA. DAVID W. AMBLER L.S.7322 HUNSAKER & ASSOCIATES SAN DIEGO, INC. ,A,u~/ $" a43-3'<7-2006 , PAGE 1 OF 1 :DV M:\OQS1\419\Legal Descriptions\A04 Esmts & Maint L c.doc WO 0061-0419 3/29/06 1-72 EXHIBIT "B" Plats Showing Public Areas To Be Privately Maintained 4/13/06 '-.> , ~/ 065550-0011305157.1 "'!':t' ~ " o~ , - C\ ... a-. < .w Oce. ::. ;z. < (r, C:Q f..... r-J :;..., '. .......,,..... ~ u Z '-, h ~~: """''-';z.~ ~ '< <. W ...... '-' ...J :::: ~ '"r./) c.- v:. ~ :..; ('", ';;::;>-:D -<'o'J ...J< :J..- - - ,;...c.. U - \ ~ d ?i ~~ 0.:. v" ,. lO'I < " \\. , '. \ ---.--- ----- I r ! ",- " 1 _____ '~._ :2 "~ ~ ~~ ----- i l<l~~ I fr1 ...~ , , . ~f -(L_____________. ~f (/1, _ I ~ ~i MI.","," 8 , \ SAVfOJ'{ ,.: , ';' /. " \. < .', I' ."';' I /~ i__/ / '----.l-....~..":r...'11 /" t I "" '-. !/ I I I '," \.\ ;/ \ ! I I "'<:,1 I I I ~ , ! - ----------- -------7 ---1 ------ L...... "" o \ ~ 0> . C.D~~ 0...# \0 ~. c.. cc z. -<: .r "'1" ~ ~ i- t; ~ - , <~,. C ';>0:::;:, ;<z ;"U ~ Q")-c..., ~~ <. ~ t:J.~ ~z 0) >~~ ~ c. ::;:, :I:. u '" /~ ~ \ ~ cd -~- 0.:. I. .1 .' o Ii ______ // ,.----- b "'" :t: V) "' " "' a .. o o '( ." N , '; "j,. o l..l >.., 1I1 ~ ~ ~ >: ~ \;; ~~\ h\~ <'U') - ~, 'S (/jm.. 13. d !:-<:. '.l ;; ~ dJ,~ 'If ,... .\\\1 "- t-- !:/ ~ ~ = 0/ ". 0 , "i ! I - 0'. 01 I' < I \" 0 rr~ ~ - ~ ;z C!:: " .~ '- < rr, ,..j/ - - u ,~, , ~ v '""' ~ -< z '-"'; Q:: ..... ,"'; - '"'" ~ ----- .- ;z ~--- :s E- ;z - ~ w ';> -< < ...: ~ :Tl ..., , , .- ,.... -- - ~ GI1 0.. :...:... - ':/'1 ~ > M -< W (Ij ::< - < " ::J - So ,J..., ..:.., ------ '" fi Cl , , - .... 'v :::: - 8 "v. .L07 r-'9' 71QiNd~"" \ ' ,ooz = ,. ~ :37~-()S ;. :/J " " y ~~ ,...> "'l;- --~&'i !;!a-: tj J ...;S ~ lO " ct G:l ~ , -.: ct , So C -.: "* Cl I Cl - Cltt:C Q2~<') ~~ l() ~~~~ tJ~-,,<"'"l "l:t<:j. , 9::::::l;.,;Cl "'",' :<; ..-. .:."::::O;<'la.. ... .. ~"-.~"';': ~~t!:l:-.!; ~:s .::i .;-- ;::, - '"" - ~ '" '" of, Q '" o Q <U , '" <U , C d )'i " t'l :> " ~ t: ;;; r 13JHS 335 ~ c '0 ;Q ~ :z =~~ f >- ~e; 1_'5 5,55; 15a w vo'" !.n; 3< ..tj" ;z:~~ f.lei .mi " 1-75 - -0 =" , - C\ C\~ -~ ,-;~ z~ ~:.... -< r~, ...... .., i~ ~ ~ t -< Z...., ~~zr~ ~r-zt ::::~:5~ ~~Q..;n ~ > ''"l ~ r..:.; '< ......, ..:J ~) -< :J'T" ;..,............ .J..,Q.. ':J - , ... ... -- ? J33i-iS 335 ---- ~ --- - /: ,/ I; ( -..:: i;j (j ~ < ~ ~ 1-76 ... , \Sl ~ .... ~ , I :~ ~ I 0> '" . 6;;I::c c:i~2;<;") :<:"Q,:g 0-,0:;::;;", " ....... ~.... ;:::; "', .c:; ~ ~ ..~~'> ~...... ~ "" ~::gC?)c.. VJ~ c.;:~ ~~C,,': ~~ "< ..... ~ c.. ..., .,. ~ OCt = "i 77'1::;5 ' '..'" ,-=, -~- ..., S- O ~ '- ,-,- , I / ..: Q:; Si ;;; " :;; ..: Q - Z f;: ..: , )1' .' \ "- Q :: i!i Q {\J , '" ", , c " ~ o t:J ~ " M o to ;;; .f d rr:, ,t::::: OJ '" ~~~ i:e ~- - J ~ u ~():; t. w <0. I..o!z ~iil, ] J' -;;. ~-<~ :!:...i 4 ,..,-~~ iij~~ iB. - . JIH ' /' I,,, 0:: I i EXHIBIT "C" Maintenance ResDonsibilities City of Chula Vista Area HOA Maintenance Maintenance Parkways within those Landscaping in the parkways Maintenance of curb, gutter, portions of those public road including irrigation, trimming sidewalks and pavement. shown on Exhibit "B" and pruning of trees, and maintenance and irrigation of turf areas, and maintenance of any project signage or similar proj ect monumentation. 4/13/06 065550-0011305157.1 1-77