Covenants of Acknowledgement of Private Road Maintenance Agreement 88-265142335 265142
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RECORDING REQUESTED RY CONTINENTAL LAND TITLE' -
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Recording Requested By:
1508 JuN —3 PH I: 45
City of Poway
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When Recorded Return To:
City Clerk
City of Poway
P.O. Box 789 NO FEE
Poway, California 92054
: For Recorder's Use Only
COVENANTS OF ACKNOWLEDGEMENTS OF
PRIVATE ROAD MAINTENANCE AGREEMENT
THIS COVENANT AND AGREEMENT is entered into as of the 3/
day of ? , 1988, between SYCAMORE CREEK ASSOCIATES,
a California 1'nited partnership ( "DEVELOPER"), and the CITY OF
POWAY ( "CITY"), for the benefit of:
Lots 94 through 97, inclusive, Lot 166 and Lot
D of CITY OF POWAY TRACT MAP 83 -02 according
to Map thereof No. 12090 filed in the Office
of the County Recorder of San Diego County,
California, on &/i , 19kV.
1. Underlying Facts.
1.1 This Agreement is entered into between CITY
and DEVELOPER for the benefit of CITY and all future
owners ( "Lot Owners ") of those subdivision lots ( "Lots"
or "Property ") described above. Lot Owners shall include
DEVELOPER to the extent it retains any ownership interest
in any Lot or Lots.
1.2 This Agreement is required as a condition of
approval by CITY of a subdivision project as defined in
the California Public Resources Code §21065, and will
run with the Lots in perpetuity as a covenant upon such
real property.
1.3 The parties desire that the Private Road,
described on CITY OF POWAY TRACT MAP 83 -02, and related
facilities be maintained in a safe, usable and first -
class condition by the Lot Owners and that a method be
established for maintenance and repair of the Private
Road and for apportionment of the maintenance and repair
expenses among existing and future Lot owners.
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1 , 336
1.4 CITY shall be deemed a party to this Agreement
with the right but not the obligation to enforce full
compliance with the terms and conditions of this Agree-
ment.
1.5 The parties intend that this Agreement consti-
tute a covenant running with the land comprising the
Property, binding upon and inuring to the benefit of each
successive Lot Owner.
2. Apportionment of Cost. The cost and expense of maintain-
ing the Private Road and related facilities shall be divided equally
among the Lots and paid by the Lot Owners or the heirs, benefi-
ciaries, legal representatives, successors and assigns of each Lot
Owner. Each Lot Owner shall have the right to enforce this Agree-
ment, including all rights under California Civil Code §845 or any
successor provision.
3. Repairs and Maintenance. The repairs and maintenance to
be performed on the Private Road shall be limited to the following
unless a majority of the Lot Owners approve such additional work:
reasonable and normal road improvement and maintenance work to
maintain the Private Road; drainage facilities in a first -class
condition to permit all weather access; repairing of cracks, filling
of chuckholes, resurfacing roadbeds, and repairing and maintaining
drainage structures; removing debris; maintaining signs, markers
and striping if any; and other work reasonably necessary or proper
to repair and preserve the Private Road and related facilities.
4. Landscape Maintenance. Notwithstanding the above, each
Lot Owner shall be responsible for the day to day watering, mainte-
nance and care of the landscaping located on the portion of the
Private Road which is a part of such owner's Lot. Each Lot Owner
shall initially landscape such portion of the Private Road consis-
tent with the remainder of such owner's Lot and shall continue to
maintain such landscaping in a first -class condition. If such
landscaping is destroyed as a result of repair work to the Private
Road or related facilities, the cost of repairing such landscaping
shall not be borne solely by such Lot Owner, but shall be appor-
tioned among all the Lot Owners equally.
5. Extraordinary Repairs. Any extraordinary repair required
to correct damage to the Private Road or related facilities that
result from action taken or contracted for by a Lot Owner or their
successors -in- interest, shall be pad for by the party taking or
contracting for such action.
6. Agent. DEVELOPER shall initially serve as the agent to
contract and oversee and do or cause to be done all acts necessary
to accomplish the repairs and maintenance required or authorized
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337
under this Agreement. The agent may at any time be replaced by the
affirmative vote of a majority of the Lot Owners. Any Lot Owner,
professional management company or other person or entity may serve
as the agent for the Lot Owners. The agent shall be entitled to
reasonable compensation not to exceed ten percent (10%) of the
actual cost of repairs and maintenance.
7. Initiation and Approval of Repairs. Repair and mainte-
nance work shall be commenced upon the approval of a majority of
the Lot Owners, and a majority of Lot Owners may adopt a program
for maintenance of the Private Road and related facilities. The
majority vote shall be evidenced by a written statement signed by
the approving Lot Owners. A copy of the written statement shall
be sent to the address of each Lot Owner shown on the latest tax
assessor's roll, at least two (2) weeks prior to commencement of
any work, incurring of any maintenance costs or adoption of a
program. Each Lot Owner shall pay his or her share of the cost and
expense of all approved work which shall be due and payable within
thirty (30) days after written request from the agent designated
under Paragraph 6 above.
8. Failure to Pay Share of Maintenance Costs. If any Lot
Owner who is a party to this Agreement refuses to perform or fails
after demand in writing to pay the Lot Owner's proportion of the
cost, an action for specific performance or contribution may be
brought against that Lot Owner in a court of competent jurisdiction
by the other Lot Owners, either jointly or severally.
9. Liability and Insurance. Any liability of the Lot Owners
for personal injury or property damage to the agent, or to any
person employed or retained to make repairs or provide maintenance
under this Agreement, or to any third person, shall be borne equally
between the Lot Owners. Each Lot Owner shall be responsible for
and maintain his own share of liability for personal injury or
property damage other than that attributable to the repair and
maintenance of the Private Road and related facilities under this
Agreement. Each of the Lot Owners shall indemnify and hold the
other Lot Owners harmless from any and all loss or liability for
injury to himself or damage to his property when such injury or
damage results from, arises out of or is attributable to the repair
or maintenance of the Private Road and related facilities under this
Agreement.
10. Indemnification of CITY. The Lot Owners shall jointly
and severally indemnify and hold harmless CITY and its agents and
employees from and against all claims, demands, liabilities, losses,
costs and expenses, including attorney's fees, arising out of or
in connection with the use of, repair and /or maintenance of, or the
failure to repair and maintain, the Private Road and related
facilities. Nothing in this Agreement, the specifications or other
contract documents or CITY's approval of the plans and specifica-
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0 338 0
tions or inspection of the work is intended to constitute an
acknowledgement of responsibility for any such matter, and neither
CITY nor any of its agents and employees shall have any liability
or responsibility therefor.
11. Enforcement by CITY. If in CITY's sole judgment the
Private Road and related facilities are not being maintained to
applicable CITY standards or the standards set forth in this
Agreement, CITY may provide written notice to the Lot Owners to
initiate repairs or maintenance within ninety (90) days after such
notice. Upon failure to demonstrate good faith to make such repairs
or maintenance within such ninety (90) day period, the Lot Owners
agree that CITY may make all needed repairs and maintenance to the
Private Road and related facilities, and may then assess all costs
for such repairs and maintenance to the Lot Owners proportionately.
The agent shall be responsible for collecting the assessments and
making payment to CITY. If the agent fails to collect the assess-
ments for any reason, CITY may pursue the remedy, provided for Lot
Owners in California Civil Code §845, to make any repairs in
accordance with this Paragraph 11, the work shall be without
warranty. The repair work shall be accepted "as is" by the Lot
Owners without any warranty of workmanship.
12. Enforcement by an Association. If the Property is or
becomes part of a "common interest development" as defined in
California Civil Code §1351(c), which includes membership in and
ownership of an "association" as defined in California Civil Code
§1351(a), then the following provisions shall apply for so long as
the Property is encumbered by a "declaration ", as defined in
California Civil Code §1351(h), and the common area of the Property
is managed and controlled by an association:
12.1 The association shall repair and maintain the
Private Road and facilities and shall be deemed the
"agent" referred to in Paragraph 6 above. The associa-
tion, which shall not be replaced except by amendment to
the declaration, shall receive no compensation for per-
forming such duties. The costs of such maintenance and
repair shall be assessed against each Lot Owner and his
Lot pursuant to the declaration. The assessments shall
be deposited in the association's corporate account.
12.2 The provisions of the declaration which provide
for assessment liens in favor of the association and
enforcement of such liens shall supersede the provisions
of California Civil Code §845. This Agreement shall not
be interpreted in any manner which reduces or limits the
association's rights and duties pursuant to its bylaws
and the declaration.
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13. General.
339 0
13.1 Binding Nature. The covenants and obliga-
tions contained in this Agreement shall be binding upon
and for the benefit of, and shall be appurtenant to,
the Lots. The covenants and obligations contained in
this Agreement shall run with the land and shall be
binding upon and inure to the benefit of the Lot Owners
and their heirs, beneficiaries, legal representatives,
successors and assigns now or hereafter owning or
holding any interest in the Lots. This Agreement shall
be recorded and any subsequent purchaser or transferee
of all or any portion of a Lot, by acceptance of
delivery of a deed and /or conveyance regardless of
form, shall be deemed to have consented to and become
bound by this Agreement.
13.2 Amendment. This Agreement may be amended in
writing upon a majority vote of the Lot Owners and
approval of CITY.
13.3 Governing Law; Severability. This Agreement
shall be governed by the laws of the State of Cali-
fornia. If any provision of this Agreement is held to
be unenforceable or invalid by any court of competent
jurisdiction, the remainder of this Agreement shall not
be impaired or affected and shall remain in full force
and effect.
13.4 Attorney's Fees. If any person institutes
an action or proceeding to enforce or interpret this
Agreement, or obtain a declaration of rights under this
Agreement, the prevailing party in such action or
proceeding shall be entitled to recover all reasonable
costs and attorney's fees incurred in such action, or
any appeal or enforcement of a judgment obtained in
such action or proceeding.
13.5 Waiver. Waiver of any provision of this
Agreement shall not be deemed a waiver of any other
provision of this Agreement, nor shall it constitute a
continuing waiver.
CITY OF POWAY
Dated: -a By
ROBERT C. EMERY, r
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Dated: 5- 11-F;�
APPROVED AS TO FORM:
J
'�5& &- ST^ EN M. ECKIS, Attorney for
CITY OF POWAY
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LES R. GILL, Attorney
SYCAMORE CREEK
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SYCAMORE CREEK ASSOCIATES, a
California limited partnership
BY: OCEANVIEW� T COMPANY,
INC., a orporation,
General Partner
BY A�2^1.f� %a�
JJ\MES GARRO, President
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STA OF CALIFORNIA )
) SS.
COUNTY OF DIEGO )
On this day of
a t
state, personally appeared BERT C.
(or proved to me on the basis s
Mayor of the CITY OF POWAY, 'I
341 0
19 efore me,
ry Publ' n and for said
E ersonally known to me
:actory evidence) to be the
it corporation that executed
the within instrument wn to me be the person who executed
the within inst on behalf of them cipal corporation therein
named, an nowledged to me that such nicipal corporation
exec the within instrument pursuant to its vlaws or a resolu-
of its board of directors.
WITNESS my hand and official seal.
NOTARY PUBLIC
STATE OF CALIFORNIA )
ss.
COUNTY OF SAN DIEGO )
On this day of , 19 , before me,
, a Notary Public in and for said
state, personally appeared JAMES GARRO, personally known to me (or
STATE OF CALIFORNIA
O) SAFECO
SS.
TITLE INSURANCE
COUNTYOF SAN DIEGO
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On this the 1 9th day of M
_Y�,yjr 19_$ $, before me, the undersigned, a Notary Public in and for
said State, personally appeared ** .Ta * * * ** mPC (7arr�
* * * * *rrn * * * **
personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the
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FOR NOTARY SEAL OR STAMP
executed the within instrument on behalf of Svram� nrP
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nership that executed the within instrument, and acknowledged to me
OFFICIAL SEAL
LINDA 1. CHRISTIANSEN
Mat such corporation executed the same as such partner and that
NOTARY PUBLIC CAU OIRIIA
such partnership executed the same.
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PRINCIPAL OFFICE IN
WITNESS m hand and OflICl81 Seal.
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My Cvlmsis m Exp. JO 4. 1989
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