Private Road/Landscape Maintenance Agreement 2000-043215583 I)OC-It 2000-04""15.
RECORDING REQUESTED AND
AUG
CITY OF POWAY
13325 Civic Center Drive
Poway, C
TO: r~tql.
~ I)IEC~ UNTY RE ER'8 OFFICE
" I: 00
III IIlilllll"'lll '11
APN: 321-200-44
P /'ATE R
This Agreement for th t repair of th de sacs and the private
road/landscape easement, the legal description and/or plat of which is set forth in Exhibit "A"
attached hereto and ' t herein by this reference is entered into by POWAY SUMMIT
ESTATES, 1NC., a Calif ("Developer") and the CITY OF POWAY ("City") for
the benefit of future subdivision lot owners who will use the cul de sacs and private
road/landscapeCIot owners"), which shall include the Developer to the extent the Developer retains
aip ' y lot or lots.
WHEREAS, this Agreement is required as a condition of approval by the City of a
subdivision project as defined in section 21065 of the Public Resources Code and 1:
Code o Ord' and,
WHEREAS, Developer is the owner of certain real property being subdivided and developed
as Tentative Map No. 89-05 that will use and enjoy the benefit of said cul de sacs and the
road/landscap A complete legal description of said real property is attached, labeled
Exhibit "B" and' l herein by this reference ("Property"); and,
WHEREAS, it is the mutual desire of the parties hereto that said cul de sacs and the private
road/landscap 1: i in a safe and usable condition by the I ~,
apl:
and,
WHEREAS, it is the mutual desire of the parties hereto to establish a method for the
and repair of said cul de sacs and the private road/landscape easement and for the
~the expense of such t g existing and future lot owners;
City shall be deemed a party hereto with the right but not the obligation to
enforce full compliance with the terms and conditions of this Ag~
WHEREAS, it is the mutual intention of the parties that this Agreement constitute a
~ the land, binding upon each successive I ?all or any portion of the
Property.
July 24, 2000
1
2684
NOW THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. The lot owners
of all or any portion of the Property are ~xpressly bound hereby for the benefit of the land.
the I
The cost and expense of
aall be d
~e heirs, assigns and
ae cul de sacs and ~ :l/landscape
~divided lots created in the subdivision and paid by
~ each such owner.
3. The repairs and be performed under this Agreement shall be limited
to the following for additional work is agreed to by a majority vote of the lot owners
owning 100% of the lots. Reasonable and normal iml; t ~ to adequately
· :1 cul de sacs, and th ~d/landscal: t related drainage facilities to
permit all weath t, all 1: ' drains and apl: fin the right of way
of l: ' :l all I: ' drain and apl: te of the !~
Cul dc Sac and Road repairs and ter this A aall include,
but is not limited to, filling of chuckholes, repairing cracks, repairing and resurfacing of roadbeds,
including brick pavers, repairing and ; drainag g del: ' ' '
signs, markers, striping, lighting and other work reasonably necessary or proper to repair and
preserve th for all weather road purposes.
Landscape shall include, but is not limited to, planting, cultivating,
weeding, fertilizing, watering, replacing, pruning and other work reasonably necessary and/or proper
to repair and maintain the cul de sacs and th for landscape purposes.
4. If there is a covenant, or other obligation imposed as a condition of
subdivision approval to make cul de sac and ~ ' landscape iml: he cul de sacs
and private road/landscap the obligation to repair and maintain the cul de sacs and the
private road/landscap herein set forth shall aen cul de sacs and the private
road ' have been completed and approved by the City.
5. Any extraordinary repair required to correct damage to said cul de sacs and the
road/land aat resu] t for by parties hereto or their
aall be paid for by the party taking action or party contracting for work which
caused th for the extraordinary repair. The repair shall be such the cul de
sacs and/or the road/landscape easement to the condition existing prior to said damage.
Notwithstanding the foregoing, the City of Poway shall have no obligation or responsibility to
rep ' k ' he cul de sacs and the road/landscap The City of Poway
shall use its best eff damag y work it may perform.
6. It is agreed that Developer is initially the ag 1 oversee and do all acts
necessary to accomplish the repairs and required and/or authorized under this
July 24, 2000 2
2 85
incurred includ'
to and paid as a part of th
the ag ~all'
cost of repairs and
need for funds, sh
after the date of such
Agreement. The parties further agree that the agent may at any time be replaced by a
of of the lot owners. Repair and c on the cul de sacs and the private
such work is needed. The agent shall obtain three (3) bids ti-om licensed :1 shall accept
the lowest of said three (3) bids and shall then initiate the work. The agent shall be paid for all costs
~le c. ompens~.tion for the ag :1 such costs shall be added
:1 provided however,
i : percent (10%) of the actual
performed. In perforating his duties, the agent, as he anticipates the
g notify the parties; and, each party shall within forty-five (45) days
pay the agent, who shall t also
maintain accurate accounting records which are to be available for inspection by any party or
authorized agent Ul: ~le request. All such records shall be retained by the agent for a
period of five (5) years.
7. Should any lot owner fail to timely pay the pro-rata share of costs and expenses as
provided in this Agreement, then the agent or any 1 owners shall be entitled without
further notice to institute legal action for the collection of funds advanced on behalf of such lot
.'lance with th~ f ' ' ~Califomia Civil Code section 645, and sl~ "' t
a action in addition to the funds advanced, interest thereon at the current prime rate
of interest, until paid, all costs and disk rsuch :ling such ne
Court may fix as and f ~le attorneys' fees.
8. Any liability of the lot owners for personal injury to the agent hereunder, or to any
worker employed to mak provid ter this Agreement, or to third persons,
as ;veil as any liability of the lot owners for damage to the property of agent, or any such worker, or
of any third t~ t of or arising out of repairs and :let this Agreement,
shall be borne, as between the I ~e same percentages as they bear the costs and expenses
of such repairs and Each ] aall be responsible for and maintain his own
[any, required by this Agreement. The parties d :l to provide for the sharing
of liability with respect to personal injury or property damage other than that attributable to the
repairs and undertaken under this Agreement. Each of the lot owners agrees to
indemnify the otl~ ./and all liability for injury to himself or damage to his property when
such injury or damag ' ' ; out of, or is attributable to any ~airs
undertaken pursuant to this Agreement.
9. ~all jointly and severally defend and indemnify and hold harmless City,
City's engineer, and their and each of their officials, directors, officers, agents and
employees from and against all liability, claims, damages, losses, expenses, personal injury and other
costs, including costs of defense and attorneys' fees, to the agent hereund y ]
: y user of the road/landscal: ~er third persons
· ' ~'or in any way related to the use of, rel: ' ~, or the failure to repair or
maintain the private road/landscal~
July 2~, 2000 3
Nothing in the Agreement, the speeiff n d City's
Cthe plans and specif ~ection of the work is intended to includ
: City, City'
th ' and each of their officials, directors, officers, employees and agents, shall have
absolutely no responsibility or liability therefor.
10. If in the City's sole judgment said cul de sacs and the private road/landscape
being maintained to standards set forth in paragraph 4 of this Agreement, the City
may thereupon provide to all lot owners to initiate repairs or within
ninety (90) days. Upon failure to d good faith to make rep ' within
ninety (90) days, the I hat the City may make all needed repairs to said cul de sacs
and/or the road/landscape easement and/or construct said road/landscape easement to meet the
standards set forth in paragraph 4 and to ~ 1 lot owners 1c The
agent shall be responsible for collecting th :l ensuring payment to the City. If the
agent fails to collect th for any reason, the City may pursue the remedy provided for
paragraph 8 hereof, or any other remedies at law or in equity.
11. If the City :e necessary rep lance with paragraph 11 above,
said work shall be with b'. Said repair shall be accepted "as is" by the 1 hour
any warranty of workmanship and be guaranteed and indemnified by them in accordance with
paragraph 9.
12. The foregoing hall mn with the land and shall be deemed to be for the
benefit of the land of each of the ] ] each and every person who shall at anytime own
all or any portion of the property referred to herein.
13.
the heirs,
It is understood and agreed that tln h t shall be binding on
t assigns of each of the lot owners.
14. It is th [th hereto that tl~' be recorded to the end
and intent that the obligation hereby created shall be and the land
and any subsequent purchaser of all or any portion thereof, by acceptance of delivery of a deed
and/ gardless of form, shall be deemed to 1~ t to and become bound by
these I: ting without limitation, the right of any 1: t to enfome the terms of
this Agreement to institute legal action as provided in paragraph 8 hereof, such remedy to be
't in addition to other remedies provided in this Al '1 to all other remedies
at law
15. The terms of this Agt
the I :1 consent of the City
j be amended in writing upon majority approval of
16. This A
that any of the lc ' '
hall be governed by the laws of the State of California. In the event
~this Agt held to be unenforceable or invalid by any court of
July 24, 2000 4
2~87 -
competent jurisdiction, the validity, and enforceability of the remaining provisions shall not be
affected thereby.
-
~,__IN WITNESS WHEREOF, the parties have executed this Agreement on Z~ y of
~ {'/[/'5 ~ , 2000.
DEVELOPER: POWAY SUMMIT ESTATES, INC.
a Calif
By: GUILLE~, Pre~sident
] f:
CARLOS EZQUERRO
Attorney-in-Fact
Its:/~/
Director, Department of
Public Works
July 24, 2000
2688
STATE OF CALIFORNIA
COUNTY OF S,
On
· me on the basis of
)
) ss.
)
2000, before me,
evidenc~rto be the person wln
. a Notary Public,
t to
>ed to the within
t acknowledged to me that he executed the same in his authorized capacity, and that
by his signature on th Ne person, or the entity upon behalf of which the person acted,
executed tin
hand and official seal.
:alif~qqJo
N LIC ~R SAID
COU1NTY AND STATE
NOTARY SEAL
STATE OF CALIFORNIA )
)
COUNTY OF SAN DIEGO )
SS.
On j3da *7 2000, before me,; ~J a Notary Public,
personally appeared i~ t4 personally kn proved to
me on the basis of satisfactory evidence to be the person wlq 9scribed to the within
t acknowledged to me that she executed the same in her authorized capacity, and that
by her signature on fin ~e person, or the entity upon behalf of which the person acted,
executed the '
NOTARY SEAL
hand and official seal.
NOTARY PUBLIC IN AND FOR SAID
COUNTY AND STATE
San Diego Cauntl,
July 24, 2000
2689
.. EXHIBIT "A" and "B"
TO IN THE STATE OF CALIFOKNIA, COUNTY
OF SAN DIEGO, AND IS DESCKEBED AS FOLLOWS:
PARCEL 1 OF PARCEL MAP NO. 15531, IN THE CITY OF POWAY, COUNTY OF ~
STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY KECORDEK OF SAN DIEGO
COUNTY, .IANUARY 23, 1989 AS FILE NO. 89-036661 OF OFFICIAL RECORDS, EXCLUDING ANY
LA KOAD.
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