Road Construction and Maintenance Agreement 82-309043r' Recording requeste6y:
CITY OF POWAY
When recorded return to:
City Clerk
City of Poway
P. O. Box 785
Poway, CA 92064
TPM 15408R
2130 0- 309043
r
OFf h � l3
15 2 OCT -7
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ROAD CONSTRUCTION AND MAINTENANCE AGREEMENT
The purpose of this Agreement is to provide adequate roadways
NO FEE
within the City of Poway and maintenance of same. This Agreement is exe-
cuted by the parties herein as a condition of approval by the City of
Poway, to a development project as defined in Section 21065 of the Public
Resources Code and will continue in perpetuity as a covenant upon the
property described herein. The standard for improvement will be that stand-
ard set forth by the Poway City Council. If no standard is specifically
set forth by said Council as a condition of approval of the project, said
standard will be those set forth at Section 51.511 of the City of Poway
Regulatory Ordinances. The construction described herein shall be accomp-
lished prior to final approval of the project herein by the City of Poway.
WHEREFORE, the undersigned agree as follows:
1. PARTIES AND PROPERTY. The parties hereto are those property
owners who have executed, or in the future execute, this Agreement. The
City of Poway shall not be deemed at party hereto, but shall be deemed a
beneficiary. The realty held by each party is identified by tax parcel
number adjacent to the signature of said party. The legal description of
the parcel upon which the project is located is set forth in Exhibit "A ",
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attached hereto and incorporated herein. The status of property for all
purposes (i.e., improved, unimproved, etc.) shall be determined as of the
first Monday in March of each year.
2. ROAD. The roadway shall be that roadway established by the
City of Poway as the roadway best suited to provide access for the City
emergency vehicles and or City projects (water, sewer, etc.). The location
of said roadway shall be within the sole descretion of the City of Poway as
a condition of approval of the development project. The description of the
road which is the subject of this Agreement is attached hereto as Exhibit
"B" and made a part hereof.
3. CONSTRUCTION AND ROUTINE MAINTENANCE. The cost of construc-
tion, capital improvements and /or routine maintenance resulting from ordin-
ary wear and tear shall be born by the parties in accordance with the
following formula:
a. A private road not providing access to public roads in
both directions is analogous to any road terminating in a cul de sac.
Under such conditions, property owners nearest the sole public access road
will not have occassion to use the full course of said private road. Given
such circumstances, fairness dictates that only those property owners
commonly traversing a portion of the private road shall be made to bear the
cost of maintaining that portion of the road. Therefore, construction,
improvement and maintenance costs of portions of the road used only by
certain persons, because situated further from the road entrance and beyond
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the property perimeters or boundries of other parties, shall be borne only
by those parties.
b. Construction improvement and /or maintenance of the road
by all parties who use the road in common shall be allocated in accordance
with the following point system:
(1) Each party automatically is allocated 10 points by
virtue of ownership of any size of undeveloped land
to which access is provided by the road. For each
acre of land (rounded to the nearest acre) 1 point
shall be allocated.
(2) For each acre (rounded to the nearest acre) of land
developed for grove use, an additional point shall
be allocated.
(3) For a residential structure or recreational struc-
ture which is used not more than 308 of the time,
10 additional points. (Housing for agricultural
workers shall not be deemed a "residential struc-
ture". A manager's or foreman's residence shall be
deemed a "residential structure").
(4) For a residential structure which is used more
than 30% of the time, 40 additional points
shall be allocated.
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(5) For any vehicle 1 ton or over, registered to
the owner of any parcel and used by same over
any portion of said road for any period of
time, 5 points.
. C. Example 1 of the formula: Assume that the road from
starting point to owner A's farthest boundary of land from said starting
point is 658 of its length; from there to B and C's farthest boundary is
358 of its length; from that point, the end of the road, D's property
becins. A has 20 acres of unimproved land. B has 40 acres of unimproved
land. C has a 20 -acre grove with a full time residence. D has 10 acres of
unimproved land. Cost of construction (or repair) of the entire road for
the year in question is $10,000.00; repair of the gate is $2,000.00.
B 40 ac II
I D i
ROAD I 10 ac I
I I
A 20 ac I C 20 ac I
Solution to Example: (see graph)
Cost of the gate and 658 of the road is shared by all. 355
of the road cost is shared only by B, C, and D. Ratio of sharing is deter-
mined by the following point of allocation:
Owner
All
Acres Grove Res
Totals
A
10
20
30
B
10
40
50
C
10
20 20 40
90
D
10
10
20
Total Points 190
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As to $8,.500 of the cost: (656 of road, and gate)
A
pays
30 /190ths
or
$
1342.10
B
pays
50 /190ths
or
$
2236.84
C
pays
90 /190ths
or
$
4026.31
D
pays
20 /190ths
or
$
894.75
As to $3,500 addditional
cost:
(358 of road)
50
B
pays
50 /160ths
or
$
1094.00
C
pays
90 /160ths
or
$
1969.20
D
pays
20 /160ths
or
$
437.60
d. Example 2 of the Formula: Assume the road is a through
road. That is, it may be traversed in both directions
by any abutting property owner. Assume the same status
of the property for point purposed as in Example 1.
I B 40 ac I D 10 ac I
R O A D
I A 20 ac I C 20 ac I
As to the $12,000 cost:
A pays
Solution
to Example:
(see graph)
50 /190ths or
$3158.00
Cost of
entire road construction is shared by all. Ration of
$5684.40
D pays
sharing
is determined
as follows:
Owner
All
Acres Grove Res
Totals
A
10
20
30
B
10
40
50
C
10
20 20 40
90
D
10
10
20
Total Points
190
As to the $12,000 cost:
A pays
30 /190ths or
$1894.73
B pays
50 /190ths or
$3158.00
C pays
90 /190ths or
$5684.40
D pays
20 /190ths or
$1263.20
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4. EXTRAORDINARY DAMAGE. It shall . be the obligation of each
party hereto to make and pay for all repairs to road, and to all related
structures (drains, gutters, gates, fences, etc.) when the same have been
damaged by the extra ordinary use of such party or his agents or employees.
Examples of extraordinary use are damage caused by tractor type vehicles
and damage caused by heavy equipment (1 ton or over) such as might be used
during the construction of a residence. Ordinary use of said road will be
for passenger vehicles and light truck (3/4 ton or less) traffic. Ordinary
wear and tear or ordinary use shall be that gradual and over a period
wearing caused by such ordinary use. Extraordinary use is causing
immediate damage with any vehicle or any damage caused by a vehicle not
defined within ordinary use traffic.
5. INITIATION AND MANAGEMENT OF REPAIRS.
a. Any system for achievement of repairs and payment of
costs which, in the year in question, is agreeabel to the majority of
parties, shall be the system utilized.
b. "Majority" is any group of landowners holding 51% or
more of the "points" as calculated in Paragraph 3. They may initiate and
manage a program of road maintenance, or maintenance and repair of related
facilities; such as gutters, gates, etc. The time and effort expended by
parties hereto in such management shall not be compensated. All other
costs incurred shall be shared in accordance with the above formula.
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c. Achievement of the minumum 516 concensus respecting
maintenance shall be evidenced by a written statement, signed by parties
purporting to constitute such representation. A copy of the written state-
ment shall be sent to the address of each party, as shown on the latest tax
assessor's roll, at least two weeks prior to the commencement of any work
or the incurring of any maintenance costs.
6. ADMINISTRATION OF COSTS. The property owner or owners
initiating repairs or capital improvements shall be in charge of making the
payments required for the work of improvement. It shall be incumbent upon
all property owners to contribute to the general fund to be used for main-
tenance or capital improvement in accordance with the point computations
referenced above. After the actual expenditure of funds by any owner or
group of owners such parties shall be entitled to assess all other parties
to this Agreement in accordance with the formula set forth above. Said
assessment notice shall clearly specify the expenditures, the purpose for
same, and the method of calculation. Upon receipt of any such notice of
assessment, the assessed property owner shall have ten days in which to
dispute the assessment. Failure to resolve the dispute shall be remedied
by arbitration as set forth hereunder. Omission by any assessed property
owner to give notice in writing within the ten days of his dispute of the
assessment shall conclusively be deemed his consent to same. When any
assessment shall have become final, it shall be due within 20 days of that
date. It shall be an obligation collectible by law through all legal
process. It shall become a lien on the land with right of sale of the
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assessed property interest upon the recordation by the assessing party or
owners of an acknowledged and verified statement, setting forth the facts
giving rise to the assessment, stating the exact amount remaining owed, and
setting forth the legal description of the land of the assessed party.
7. ARBITRATION. Any dispute among any of the parties to
this Agreement respecting the interpretation of the Agreement or the appli-
cation of any of Lts terms or the action taken by any party in accordance
therewith, shall be settled by arbitration. The arbitrator shall be any
person selected by the mutual consent of the disputing parties. Said
arbitrator shall conduct his proceedings in an informal manner, rendering
his opinion in writing to all parties. Should the parties be unable to
agree as to an arbitrator, the arbitration shall be administered and the
arbitrator chosen in accordance with the rules of the American Arbitration
Association.
8. FINDING. The City of Poway finds that failure to main-
tain private roads to standards prescribed by law adversely impacts upon
the health, safety and welfare of all residents thereof. The City further
finds that inadequately maintained private roads present potential hazards
to emergency vehicles and other vehicles in the course of city business and
as such are a public nuisance.
a. Therefore, if in the City's sole judgment said pri-
vate road has not been maintained to specifications set forth pursuant to
Chapter 5, 851.511 and Chapter 8, 881.102.15 of the City Code, or other
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standards applicable to this Agreement, the City will thereupon provide
written notice to all parties to this Agreement to initiate repairs or
construction within thirty (30) days. Should said parties fail to demon-
strate good faith to make repairs or construction at the expiration of the
thirty (30) days the City is further empowered by this Agreement to make
all needed repairs to said road and /or construct said road to meet current
city standards then established by the Poway City Council as standards for
the hereindescribed road, and to then assess costs to all property owners
to this Agreement. Such assessment will be established in conformance with
the point system contained herein.
b. Any property owner failing to make payment to the
City for costs incurred pursuant to Section (a) within sixty (60) days of
receipt of a billing from the City shall be deemed in violation of the
agreement. The parties agree that said duty to City, not satisfied within
the aforesaid sixty (60) day period, shall constitute a lien by City on
said property(s). This lien shall constitute an encumbrance on the prop-
erty for all purposes provided by Sec. 38773.5 of the Government Code.
Said lien shall bear interest at the rate set by City Council, but no less
than 108 per annum, beginning from the date the property is billed in
accordance with subparagraph (a).
C. Property owner(s) shall indemnify and hold harmless
City, City's Engineer, and their consultants and each of their officials,
directors, officers, agents and employees from and against all liability,
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claims, damages, losses, expenses, and other costs, including costs of
defense and attorney's fees, arising out of or resulting from or in connec-
tion with the performance of the work, both on and off the job -site, and
during and after completion, provided that any of the foregoing: 1) is
attributable to bodily injury, sickness, disease or death, or to injury to
or destruction of property including the loss of use resulting therefrom,
and 2) is caused in whole or in part by any act or omission of property
owner, any contractor, any sub - contractor, any supplier, anyone directly or
indirectly employed by any of them, or anyone for whose acts or omissions
any of them may be liable. Nothing in the Agreement, the specifications or
other contract documents or City's approval of the plans and specifications
or inspection of the work is intended to include a review, inspection,
acknowledgment of a responsibility for any such matter, and City, City's
Engineer, and their consultants, and each of their officials, directors,
officers, employees and agents, shall have absolutely no responsibility or
liability therefor.
d. If City is required to make necessary road repairs in
accordance with subparagraph (a) above, said work shall be without warranty
to property owner, his agents or assigns. Said repair shall be accepted
"as is" by said property owners without any warranty of workmanship. Said
repair shall be guaranteed and indemnified by property owner in accordance
with subparagraph (c).
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9. COVENANT RUNNING WITH LAND. This Agreement shall be
deemed and is intended to run with the land and be, and constitute a lien
and restriction upon said property, shall be binding upon and inure to the
benefit of the undersigned, his /her /their heirs, personal representatives,
successors and assigns, forever or until such time as the said private road
shall be dedicated to and accepted for use as a public street or thorough-
fare by municipal government lawfully exercising jurisdiction over said
private road.
10. RECORDING OF AGREEMENT. It is the purpose of the signa-
tors hereto that this instrument be recorded to the end and intent that the
obligation hereby created shall be and constitute a lien and shall be
secured by the said property and any subsequent transferee thereof, by
acceptance of delivery of a deed and /or conveyance of the said property
shall be deemed to have consented to and become bound by these presents,
including without limitation, the right of any person entitled to enforce
the terms of this Agreement to enforce the lien therein created by fore-
closure proceedings in the manner provided by law for the foreclosure of
mortagages, such remedy to be cumulative and in addition to all other
remedies at law or in equity.
11. SUBSEQUENT USERS. In the event that a party (parcel) not
originally contemplated by this Agreement gains access to said private
road, that party (parcel) shall be required to subscribe to this Agreement.
Should any parcel contemplated by this Agreement be split into multiple
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parcels (two or more) each newly created parcel shall thereupon be obliged
under this Agreement and incur its portion of maintenance costs as set
forth by the point system herein.
IN WITNESS WHEREOF, the parties hereto have executed this
agreement on the dates set forth hereinafter:
Date Owner Tax Parcel No. Signature
Jo+1,4 J 6A26W4E2 Z`1X -ZIo -19
JyojTH A 6Arwr44E2 Z18-Z10 -1°)
STANIE� G R�l#M1i�ISK1 Z18- 110 -19
Auct J . 211 -L10 -19
ACCEPTED:
(Acknowledgmment of execution of the OWNER must be attached)
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THAT PORTION OF THE SOUTHWEST , OF SECTION 34, T125, R1W, SAN BERNARDINO
BASE AND MERIDIAN, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF, AS DESCRIBED IN DEED TO
STANLEY G. KAMINSKI, ET AL, RECORDED ON JUNE 28, 1978, AS FILE /PAGE NO.
7B- 268695 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDED OF SAID
COUNTY.
1 STATE OF CALIFORNIA 1
COUNTY OF San Diego J
on August 3 1982 before me,
the undersigned, a Notary Publie in and for said County and State,
personally appeared Stanley G Kaminski, Alice J
Kaminski John J Garlinger and Judith A.
nc Garlin er --- - - - - - -----------------
------------------------------ -7eown to me
Tto be the person$ wh n s are subscribed to the
a with' wt nd 0 ged tha• they executed the
� e
s
m
EXHIBIT "A"
SAFECO
FOR NOTARY SEAL OR STAMP
OFFICIAL - SEAL
M L SCHWARZ
NOTARY PlJ". CALIFORNIA
SAN DIEGO COUNTY
►y Comm. Fmims Apr. 27, 1984
2143
THAT PORTION OF THE SOUTHWEST QUARTER OF SECTION 34,TOWNSHIP 13 SOUTH, RANGE 1
WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF
, CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF, BEING DESCRIBED AS FOLLOWS:
PARCEL 1:
THAT PORTION OF THE EASTERLY 60 FEET OF THE SOUTHWESTER QUARTER OF SAID SECTION
34 LYING WITHIN THAT PROPERTY DESCRIBED INDEED TO STANLEY G. KAMINSKI, ET AL,
RECORDED ON JUNE 28, 1978, AS FILE /PAGE NO. 78- 268695 OF OFFICIAL• RECORDS OF
SAID COUNTY.
PARCEL 2:
A STRIP OF LAND 60 FEET IN WIDTH LYING WITHIN SAID SOUTHWEST QUARTER OF SECTION
34, THE CENTERLINE OF SAID STRIP DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE WESTERLY LINE OF SAID SOUTHWEST QUARTER, DISTANT
THEREON NORTH 0° 03' 29" WEST 1301.24 FEET FROM THE SOUTHWEST CORNER THEREOF;
THENCE SOUTH 89° 17' 18" EAST 253.81 FEET; THENCE NORTH 54° 17' 24" EAST 250.00
FEET; THENCE SOUTH 79° 49' 34" EAST 112.41 FEET; THENCE SOUTH 70° 23' 24" EAST
316.02 FEET; THENCE NORTH 17° 14' 50" EAST 211.80 FEET; THENCE NORTH 32° 23' 19"
EAST 231.94 FEET; THENCE NORTH 31° 10' 31" WEST 270.22 FEET; THENCE NORTH 17 °30' 35"
EAST 158.28 FEET; THENCE NORTH 44° 46' 10" EAST 152.66 FEET; THENCE NORTH 21° 24'
24" EAST 144.12 FEET; THENCE NORTH 192.27 FEET TO THE NORTHERLY LINE OF SAID
SOUTHWEST QUARTER.
EXCEPTING THEREFROM ALL THAT PORTION LYING OUTSIDE OF THAT LAND DESCRIBED IN
' DEED TO STANLEY G. KAMINSKI, ET AL, RECORDED ON JUNE 28, 1978, AS FILE /PAGE
NO. 78- 268695 OF OFFICIAL RECORDS OF SAID COUNTY.
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EXHIBIT "B"