HomeMy WebLinkAbout0013_9_Cottage Lane - Exhibit H Retention AgreementRECORDING REQUESTED BY
CITY CLERK
CITY OF LAKE ELSINORE
130 S. ;Main Street
Lake Elsinore, CA 92530
Attn: City Clerk.
WHEN RECORDED MAIL TO:
Space above this lire reserved for Recorder's use
EXI=MPT FROM RECORDING € EE'. -
GOVERNMENT AGENCY BUSINESS
Per Gov't Codes 6103 and 27 383
COVENANT TO RE1MBU.RSE CITY OF LAKE ELSINORE ICOR MAINTENANCE OF
OFF-SITE RETENTION BASIN
This COVENANT TO REIMBURSE CITY OF LAKE ELSINORE FOR
MAINTENANCE OF OFF-SITE .RF TENTION BASIN ("Covenant's is dated as of'November
21, 2016 by LF", COTTAGE LANE, LLC, a California lirnited liability company (".Dei,eloper")
and the CITY OF LAKE; EI.SINORI-?, a municipal corporation ("Cita"). Developer anci City are
referred to herein individually as a "Paqlt" and collectively as "Parties".
A. Developer is the owner of the planned residential development commonly known
as Cottage bane ("Project"°}, located in the City of Lake Elsinore, County of Riverside, State of
California, which real property is legally described as follows:
Lots I to 46 and 49 to 50, itiGh-Isive, of "Tract No. 32096, in the
City of I.,ake Elsinore, as per Map filed in Book 413, Pages 94 to
96, inclusive, of Maps, in the Office of the Coclnty Recorder of
Riverside Countv
(hercinaftcr, the "Proper-tt'")
B. The Project is subject to those certain Conditions of Approval for Cottage Lane
Specific Plan No. 2005-02, 'T'entative "[Tact Map No. 32996 and Residential Design Review No.
2005-06 (the "Conditions afApproval"). A copy of the Conditions of Approval are on file as a
CHY, _3u 7 12-0002\ ,61-870.3 1 1 i22/2016 Cottage bane Retentioa Basin Agreement 1 12116 1doex Page I
public record and available dor inspection at the Office of the City Clerk, City of Lake Elsinore,
130 S. Main Street Lake Elsinore, CA 92530.
C. Conditions oi'Approval No. 15 provides, in pertinent part, that:
Prior to approval of the Final Map or if deemed appropriate by the City
Engineer, prior to issuance of building permit, the applicant shall initiate
and colnple.te the formation of a Horneowner's Association, approved by
the. City, recorded, and in place. All Association dOCUMCI tS shall be
approved by City Planning and Engineering and the City Attorney and
recorded, such as the Articles of Incorporation for the Association, acrd
Covenants,. Conditions and Restrictions (CC&Rs).
D. Conditions of Approval No. 51 provides that:
The Homeowner's Association shall maintain all project improvements
and facilities, including the project streets, landscaping, park facilities,
and drain=age improvements.
1 . The Project is suhject to that Declaration of Covenants, Conditions, Restrictions
and Reservation of I,asernents for Cottage Lane --- Tract No. 32996 ("Declaration ), recorded on
December 14, 2006, as Document. No. 2006-0918325, in the Official Records of Riverside.
California. The Declaration provides for the formation of the "Cottage Lane fcomes HOA"
(hereinafter the "HomeorvnersAssociation"). however, as ofthe Effective Date, the
flomeow=ner's Association has not been formed.
fl. The drainage plan for the Project includes an adjacent off-site parcel, which is
described as Parcel 2 of Parcel Map No. 7361, recorded in Book 23, Page 75 of Maps, in the
Office of the County Recorder of Riverside ("Retention Basin"). The Retention Basin consists
of approximately 46,100 square feet with various improved features. including riprap, consistent
w,lth a property designed fir use as a retention basin.
G. At the tiro ol'dic approval of Ten tative'fract No. 32996, the Property and
Retention Basin were under uni'tied ownership. However, the Property was foreclosed upon by a
lender and subsequently acquired by Developer herein.
H. Article ]l, entitled "Association Maintenance", Section 2.05, of the Declaration
provides certain maintenance obligation on the "Declarant" (currently, the Developer herein)
and, upon its lormation, the f lomeowner's Association, including the following:
(b) Maintain and repair Parcel 2 and Lettered Lot "A" of Parcel Map
No. 7361, in the City of Lake Elsinore, as shown by map on file in
Book 23, Pages) 75 of Parcel Maps, in the Office of the County
Recorder of Riverside C'aunty, California ("Adjacent Lot") and ti7e
improvements thereon until such time as the Adjacent l,ot owner
begins construction of a house, residence or other dwelling unit on
the Adjacent Lot and/or the Adjacent Lot is no longer used as a
catch basin for the Property.
C .D', M71 g6, 870,3 11/22!'o 16 Counge Lane Reteation Basin Agreoment 1 12116 2.doa.c Page 2
The "Adjacent Lot" as identified in Section 2.05 is the same real property as the Retention Basin
herein.
I. Neither the Developer nor the Homeowner's Association have the legal right or
permission of the current owner of tyre Retention Basin to enter onto the Detention Bal' -in anti
perFOrm the maintenance and repair required by the Conditions of Approval and the Declaration.
J. As a result of this inability, the Retention Basin, which provides a critical
drainage improvement, Fell into disrepair and (lie nuisance conditions therein posed a risk to the
public's health, safety and welfare. Upon complying with the City of fake Elsinore Municipal
Code and all other legal requirements, the City has previously entered the Retention Basin on
and re -mediated the nuisance conditions thereon.
R. Developer and'the City desire to eater into an agreement which clarifies the
obligations under the Conditions oFApproval and the Declaration with respect to Retention
Basin if and until such time as the Developer and/or 1 on-leovvncr's Association may enter the
Retention Basin for the purposes of complying with the Conditions of Approval and the
Declaration, and to thither provide, as necessary. that the City w111 be reimbursed for the cost
associated ivith reIlICdiatinI-Y nuisance conditions within the Retention Basin as such conditions
zlrIse,
L. The Parties have determined that maintenance and repair costs associated with
off-site basins like the Retention Basin, based ort current industry standards, location and .similar
projects, is $0.18 per square foot.
Tl-1F.REFORF,, in consideration of the promises contain -ted herein, Developer and the City
agree as follows:
I. Maintenance an(] Repair oi'Rettnit_ion Basin. City shall, to tyre extent legal1v
�w'
a]loed to the exercise of the City's police Powe{ enter unto the Retention Basin Under lawful
authority as may be authorized by a court of law, and perform such activities as necessary to
remediate nuisance and other conditions that pose a risk to the public's health and safety, which
activities shall include maintenance and repair of the Retention Basin.
2. Reimbursement. When the City perforins such maintenance and repair oFthe
Retention Basin pursuant to Paragraph 1, then Developer shall reinnburse the City for costs
reasonably incurred For such activities (,the "Annual Fee"} as Ibl[ows:
a. Beginning January 1, 2017, the Parties agree that the reimbursable Annual
Fcc shall not exceed $8,Zg8 per year, provided, however. beginning January 1, 2018 and
annually thereafter, the Annual Fee established by this Section shall be revised trltnualiy by
means of an automatic adjustment at the beginning of cacti year based on the average percentage
chanoe over the previous calendar year set forth in the C011SUllIer Price hrclex for all urban
Consurrtcrs in the Los Angeles-Anaheim-i',iverside area, measured as of the month of December -
in the calendar year which ends in the previous fiscal year.
b. The amount ofthe cost reasonably incurred by the City shall include, but
not be limited to—reasonable administrative cost including the cost of code enforcement
CFD\ 30712-000'21\ 562870.3 1 U322G16 Co(tage IA -10 RCLOT) tiui1 Basin .A�,rcrmcnt t !I. t 16 2.doOx Pa,
pers01111CL out of pocket cost for contractors performing maintenance and repair and the cost of
City rnaintenance crews for maintenance and repair, and cost of acquisition of the .Retention
Fusin should the City elect to do so irrespective of the year such cost is incurred, provided,
however, that in no event shall: (i) the reimbtrsement exceed the Annual Fee irrespective of the
total cost incurred by the City; and (ii) that the cost for the acquisition of the Retention Basis that
is included as a component ofthe cost reasonably incurred by the City shall not CUrriulatively
exceed $20,000.
3. City Ac uisitign of ReteEidon Basin. ]fat any time the City elects, in its sole and
absolute discretion, to acquire the Retention Basin, then the City- shall no later than 24 months
following the written request of the Developer or its successor hereto, includiltg the
I lomeowner's /association, execute, at no Further cost to Developer except as otherwise provided
in Section 2, an easement, to be recorded in the wvhich grants Developer or the Homeowner's
association, as applicable, the right to maintain and repair the Retention Basin pursuant to the
requirements of the Conditions of Approval and the Declaration. Thercafter, the Developer or
the Homeowner's Association. as applicable; shall be responsible for the maintenance and repair
of the Retention Basin, and the Annual Fee shall no longer be paid to the City.
4. A:ssuninti
Upon the close of escror on Developer's sale of the fortieth (40u,) residential lot in the fro_ject.
the Homco%y ner's Association shall automatically become responsible for all Developer
obligations described herein. Nom ithstanding the foregoing_ Developer shall have the riz-lit at
any time prior to the occurrence ol'such automatic shift of responsibility to assign; and cause the
Homco,�ncr's Association by written instrur71ent to assume, Developer's obligation;: ander this
Covenant. Notwithstanding sucl-r assignrtrcnt and assumption, Developer shall remain
responsible for the above reimbursements to tate City until the earlier to occur of (a) the issuance
of certificates ofocc.upancy for all homes in [lie Project. or (b) the Developer's demonstration to
the reasonable satisfaction of the City Manaoer that the Ifomewvner''s Association possesses
sufficient funding from assessments to homeowners to satisty the reimbursement obligation set
tolrth in Section ?. So tong , i)eveloper is not in dofault ofthis Covenant, the City shall
consider Developer to be in compliance the Conditions of Approval concerning the
Retention Basiu,
5. Amendment of the Declaration. The City shall consent to any amendment to the
Deciaration which Developer deems reasonably necessary to conform to the terms of this
Covenant.
6. Ncstice. All notices, statements, or other documents which any party shall be
required or desire to give to any other party hereunder must be in writing and shall be given by
the party only in one of the following ways: (i) by personal delivery; or (ii) by addressing it as
indicated below; and by depositing it, registered or certified mail, postage prepaid, in the United
States rail, ff so delivered or mailed, each such notice, staternent, or other document shall be
conclusively deemed to have been given vdien personally delivered, or forty-eight (48) hours
after the date of mailing, (excluding Saturdays, Sundays, and federal holidays), as the case may
be. The addresses for notices and other communications, unlit further notice, are:
CLU\ i)i l _)-W021 >62870,3 o ri22,2010 COLWgo Lim ROtCntlon Hasin Agrcehierd 1 ["1 16 2,docx Page 4
Developer.: LE COTTAGE LANE,, LLC
179 Calle Magdalena Y201
Encinitas, CA 92024
Attn: Lake Elsinore Project
City: CITY OF LAKE ELS[ -,ORI—,'
130 S, Main Street
Lake. Elsinore, CA 92530
Attn: City Clerk
7. Arbitration or Disptites. Any dispute between the Parties concerning this
Covenant shall be settled between them by binding arbitration in accordance with the
Commercial Arbitration rules of the American Arbitration Association. Judgment upon the
m,%�ard rendered by the arbitrator(s) may be entered in any court having -Jurisdiction thereof. if
the controversy is referred to arbitration, any fee to initiate arbitration shall be paid by the
initiating party, but the cost of arbitration shall ultimately be borne as determined by the
arbitrator,
S. into Liability For Failure to Exercise P'u'ce Powers. Developer acknowledges that
the City does not currently possess a p1'operty interest in tile Retention Basin and that the City's
ability to enter- unto the Retention Basin as ol'the F;ffective Date arises directly from the City
exercise of its police powers to protect the health and safety ofpeople and property within the
City's municipal boundaries. Accordingly, to the extent that conditions within the Retention
Basin do not pose a hazard to the public's health and :Safety, or, if the City is unable to secure the
necessary permission from a court of law to enter the Retention Basin, or either the Developer or
the 1-lotneo vncr's .Association has failed to reimburse the City as provided herein, the City shall
have no obligation to enter unto the Retention Basin as otherwise provided in Section 1.
9 Assignment to Subse cent Developer. The City acknoNvledges that Developer
intends to assign its rights and obligations under this Covenant to a third -party developer in
conjunction with Developer's sale of the Project. Provided that the subsequent developer shall
execute a written assulalption of this Covenant in such form as reasonably acceptable to counsel
for (11e City, the City hereby conserll.s to such assignment.
10. Release of Covenant Upon the ASSLIn1 )tion of Covenant. Provided that the
Developer is not in default of this Covenant and the homeowner's Association has assumed the
Developer's obligation as provided in Section 4, City shall promptly upon the request of
Developer, deliver an instrument; duly acknowledged, releasing this Covenant as an exception to
title to the Property: provided, however, that the Covenant shall remain enforceable as to the
Parties and successors thereto in all other respects.
I I . No Obligation of Homeowners. Only the Developer and/or HomeowneCs
Association and any assignees of the Developer and/or Homeowner's Association shall be liable
for the Developer obligations described herein. The transfer of any portion of the Project to a
Ca:l)'v.30712-G0021562370,3 ? th12016 Cottage Ume Retention Hasm A,,rtemcm 112] 16 ?,doc,< Page 5
residential purchaser s.hal I not create any obligations .for such residential purchaser under this
Covenant.
12. Mongigee Protection. No portion of this Agreement or any amendment or
violation thereof shall operate to defeat or render invalid, in whole or in part, the rights of the
beneficiary, insurer, guarantor, or holder of any mortgage or deed ol'trust encumbering any
portion ref the Project.
13 . Effective date. This Covenant shall become effective upon it recordation in the
Office of the County Recorder of Riverside Countv.
14. Covenants RMInina.i.th the 1,alid. The terms and conditions of this Covenant
shall constitute a covenant running with and binding the land in accordance with the provisions
of California Civil Code Section 1468. Accordingly, the Property and each legal lot therein shall
hereafter be held, sold, conveyed, mortgaged, encumbered, leased, rented, used, occupied and
improved subject to the aforementioned conditions, all of which shall run with thy: Property and
each legal lot therein shall be binding on all parties having any right, title or interest in the
Property and each legal lot therein or any part thereoftheir heirs, successors and assigns.
15. Miscellaneous. As used in this Covenant. all words it) the masculine, feminine, or
neuter gender, and the plural or singular number. shall each be construed to include the others
whenever the context so requires. This Covenant shall be binding upon and inure to the henefat
of the respective successors and assigns of the parties hereto. This Covenant shall be goti creed
by and construed in accordance with the laws of the State of California. Time is o['tile essence
of this Covenant. Nothing herein shall be construed to make, any other party a joint venturer oz'
partner with [developer for any purpose whatsoever. No change in or addition to, or waiver or
termination of this Covenant or any part thereof, shall be valid unless in writing and signers on
behalf of each of the parties hereto. Every provision of this Covenant is intended to be
severable. I f any term or provision het-eof is illegal for any reason whatsoever, such illegality or
unenforceability shall not affect the validity of the remainder of this Covenant.
I,Vgnafures on next pa el
ClTYi 30712-0002', 56,8 70 3 1 11.32,+2016 Cottage Late Retention Rn.vin Agreement I I ) 116 2 doex Page 6
IN WITNESS WHEREOF, the Parties hereto have execrated this Covenant oai the day and
year set forth below.
Date:
ATTEST:
City Clerk
APPROVED AS TO DORM:
City Attorney
Date:
Date:
CITY:
CITY OF LAKE ELSINORE,
a mUnicipal corporation
By:
Grant Yates, City Manager
DEVELOPER -
LE COTTAGE LANE, LIX, a California
limited liability company
I3v:
Bv:
N arae:
Title_ llw+
CTM 30712-00021562870 3 1 k"22,20 16 Coitabe Lone Kecention Basin Agrecmenl 1121 16 2 docx Page 7
ACKNOW LEDG1:1.M ENT
A notary public or other officer completing this
certificate verities only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State ofCalifo.rnia )
County of . `-
On before me, v, �a,��
jI7C:TC' lY.Sc'1'� DILTDT7L Ei ld silk Of Offl' Y'1]
i
persontrl ly appeared_ - �. �l� r�� la ?_ '�. i1 U A i)iF� dA _
(hertz insert name(s) otsi�rter(�yJ
who proved to nye on the basis of satisfactory evidence to be the peasor s whose Flail)I ssy is i'ei
subscribed to the rvithin instrument and acknowledged to rite that he/she the executed lft� same.
in hislhcr .l1CA—IEsthorized capacity res; and that: by hi-lhct theii�ignatr.ir s on the instrument
the perso!10) or the entity upon behalf of which petror@aetc ; exectrted the instrument.
1 certifi- under PENALTY OF PERJURY under the laws of the State of California that the
Foregoing paragraph is true and correct.
Witness my hand and official seal.
(Signature) (SC,91)
KIM M. HURO
Comsnitelun #►1�07�6�0
Lip MY Notary Public - C1140rnia �
San Ol*pa County
Comm. E fres Jun 21, 201 a
C I gin`•
3071 2-0002'\ 5628 i 0,2 1 U22i2016
AC KNOW LEDGEMENIT
A notary public or other officer completing this
Certificate Verit1es only tlae identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity ofthat document.
State of Cali fornia ):
I
County
On , before me.
/here inseri name and litle of the gffker/
personally appeared
fher°e insert names)
who proved to me on the basis of satisfactory evidence to be: the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/slac/they executed the same
in his/her/their authorized capacity/ins, and that by his/her/their signattrre(s) on the instrument
the person(s), or the entity upon behalf of which person(s) acted, executed the instrument.
I certify under PENAl.A.'Y 01' PERJURY under the lawns of the State of California that the
['orcgoing paragraph is true and correct.
Witness my hand and official seal.
f Signature)
Cf D',,30712-0002+.56'870.3 11"22'2016
(Seal)
a
i
ACKNOWLEDGEMENT
A notary public or other officer completing this
certiticate verities only 1he identity of the
individual who signed the docurnem to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that. document.
State of California )
}
County of }
()n . before me..
/here insert rune and tiCle q/'the officer/
personally appeared
/frere insert rrusne(s) of signer(s)]
who Droved to nye 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 e;><ecuted the same
in his/her/their authorized capacity/les, and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of -which person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under- the laws of the State of California that the
foregoing paragraph is true and correct.
Witness nay hand and official seal.
(Signature)
CT --D\ 30712-CK?02\ 762870.3 1 1i_2/2016
(Seal)