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Road Construction and Maintenance Agreement 81-353786r tl140. When recorded, return to: City of Poway City Clerk P.O. Box 785) A Poway, Calif. 92064 t.: �OV 2 319a1 of pOW AY ROAD CONSTRUCTION AND MAINTENANCE AGREEMENT f 8`353736 os IMAM .L � �'�� �►� y V ERA �.. LY'a ft amp" The purpose of this Agreement is to provide adequate roadways 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- and 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 ", 1 Iq 0 F, 1069 f 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 "Bw 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 2 * 1070 f 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 30% 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. 1071 r (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 begins. 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 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 4 1 072 0 As to $8,.500 of the cost: (65% 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) 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 A 20 ac I C 20 ac I Solution to Example: (see graph) $3158.00 Cost of entire road construction is shared by all. Ration of D pays 20 /190ths or 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 0 0 0 1073 0 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. 0 1074 M c. Achievement of the minumum 51% 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 7 1075 0 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 its 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, §51.511 and Chapter 8, 581.102.15 of the City Code, or other 0 I 1• 1076 • 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 10% per annum, beginning from the date the property is billed ill 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, 9 1077 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). Mai] • 1078 0 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 11 n 1079 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 L/ ACCEPTED: CITY OF POWAY r� OWNER 1 (seal if corporation) (Acknowledgmment of execution of the OWNER must be attached) 12 m CL E 0 U d c m u E Q LL v' v T S E 0 0 • STATE OF CALIFORNIA l COUNTY OF j ss. , 1080 OnG��������/ )))before me. the undersinnod , Mm­ o..ki:_ :_ __j c__ known to me to be the person_ whose name. % subscribed to the within instrument and acknowledged tj me OFFICIAL SEAL gEp o. .M1 P.. 1 that— Cy executed the s9me�UDITH M. LAMAR 1 00 n� 1 NOTARY PUBLIC CtAF:�RNIA ° i WITNESS my h and official seal. 0 PRINCIPAL OF I E N i SAN D.EG� COUNTY' i MY COMfvtiSSC%---,-------w vnES JUNE 10, 1;35 Signature Name (Typed or Printed) (This area for official notarial seal) w t 1081 PROPERTY LEGAL DESCRIPTION Parcel 4 of Parcel Map 10449, filed in the Office of the County Recorder of San Diego County on September 11, 1980 as File No. 80- 294112 of Official Records. EXHIBIT "A" 13 1 1082 0 ROAD LEGAL DESCRIPTION Glen Circle Road from Wild Holly Lane to the Westerly Boundary of Parcel 4 of Parcel Map 10449 filed in the Office of the County Recorder September 11, 1980, along the alignment of the irrevocable offer of dedication as shown thereon. EXHIBIT "B" 14