Rancho de Oro Private Street Maintenance Agreement 2016-0701151RECORDING REQUESTED BY:
CITY OF POWAY
AND WHEN RECORDED MAIL TO:
CITY CLERK
CITY OF POWAY
P O BOX 789
POWAY, CA 92074
APN: 321 - 271 -06
DOC# 2016 - 0701151
II I I � II111111 II II li II IIII II II I I I II
Dec 21, 2016 03:56 PM
OFFICIAL RECORDS
Ernest,). Dronenburg, Jr.,
SAN DIEGO COUNTY RECORDER
FEES $39.00
RANCHO DE ORO PRIVATE STREET MAINTENANCE AGREEMENT
(MDRA14 -014, TPM14 -001)
PAGES: 9
This PRIVATE STREET MAINTENANCE AGREEMENT ( "Agreement ") dated for reference
purposes as of the 7th Day of December, 2016 entered into between William E. Bourgeois,
(hereinafter referred to as "DEVELOPER "), and the CITY OF POWAY, a municipal corporation
(hereinafter referred to as "CITY "), for the benefit of future subdivision lot owners (hereinafter
referred to as "LOT OWNERS," which shall include the DEVELOPER to the extent the developer
retains any ownership interest in any lot or lots) who will use the PRIVATE STREET.
WHEREAS, this Agreement is required by CITY as a condition of approval of Minor
Development Review Application (MDRA) 14 -014.
WHEREAS, DEVELOPER wishes to provide for the maintenance and repair of that
certain PRIVATE STREET described on Exhibit A attached hereto and made a part hereof
(hereinafter referred to as the "PRIVATE STREET ");
WHEREAS, DEVELOPER is the owner of certain real property being subdivided and
developed as CITY OF POWAY TENTATIVE PARCEL MAP 14 -001 that will use and enjoy the
benefit of such PRIVATE STREET. A complete legal description of said real property is included
in Exhibit B attached hereto and made a part hereof. Said real property is hereinafter referred to
as the "PROPERTY;
WHEREAS, it is the mutual desire of the parties hereto that the PRIVATE STREET be
maintained in a safe and usable condition;
WHEREAS, it is the mutual desire of the parties hereto to establish a method for the
maintenance and repair of the PRIVATE STREET and for the apportionment of the expense of
such maintenance and repair among existing and future LOT OWNERS;
WHEREAS, it is the mutual intention of the parties that this Agreement constitute a
covenant running with the land, binding upon each successive LOT OWNER of all or any portion
of the PROPERTY.
Page 1
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
The property benefited by this Agreement is the PROPERTY. The present and
successive LOT OWNERS of all or any portion of the PROPERTY are expressly
bound hereby for the benefit of the PROPERTY.
The cost of maintaining the PRIVATE STREET shall be divided equally among the
subdivision and paid by each LOT OWNER or his or her hairs, assigns and successors
in interest.
In the event the herein described parcels are subdivided further, or any additional
parcels not originally contemplated by this Agreement gains access to the PRIVATE
STREET, the LOT OWNERS, heirs, assigns, and successors in interest of each such
newly created parcel or additional parcel shall be liable under this Agreement for their
then pro rata share of expenses and such pro rata shares of expenses shall be
computed to reflect such newly created or additional parcels.
4. The repairs and maintenance to be performed under this Agreement shall be limited
to the following, unless the consent for additional work is agreed to by a majority vote
of the LOT OWNERS of parcels 1,2 and 3, including subdivisions thereof and
additions thereto as described above in paragraph 3: Reasonable and normal road
improvement maintenance work to adequately maintain the PRIVATE STREET and
any related drainage facilities to permit normal access, ingress and egress to and from
the lots within the PROPERTY. Repairs and maintenance under this Agreement shall
include, but are not limited to, filing of chuckholes, repairing cracks, repairing and
resurfacing of roadbeds, Pavers or columns, repairing and maintain drainage
structures, removing debris, maintaining signs, markets, striping and lighting, if any,
and such other work as is reasonably necessary or proper to repair and preserve the
PRIVATE STREET for normal access, ingress and egress purposes.
5. The obligation of the LOT OWNERS to repair and maintain the PRIVATE STREET of
the PROPERTY as herein set forth shall commence when the PRIVATE STREET
improvements have been completed, and approved by the CITY.
6. The cost of any extraordinary repair required to correct damage to the PRIVATE
STREET shall be the responsibility of the party causing the need for such
extraordinary repair. The repair shall be such as to restore the PRIVATE STREET to
the condition existing prior to said damage.
7. It is agreed that DEVELOPER is initially the agent to contract and oversee and do all
acts necessary to accomplish the repairs and maintenance required and /or authorized
under this Agreement. The developer will remain the agent until he moves away from
the PRIVATE STREET or decides to relinquish the role as the Agent to another
responsible party and that other responsible party has accepted the duties and
responsibility as "agent' under this Agreement. After the Developer departs the parties
further agree that the agent may at any time be replaced after the direction of a
majority of the LOT OWNERS. Repair and maintenance work on the private road
easement shall be commenced when a majority of the LOT OWNERS agree in writing
that such work is needed. The agent shall obtain three bids from licensed contractors
and shall accept the lowest of said three bids and shall then initiate the work. The
agent shall be paid for all costs incurred including a reasonable compensation for the
repair and maintenance cost; provided, however, that compensation for the agent's
service shall in no event exceed an amount equivalent to 10% of the actual cost of
Page 2
repairs and maintenance performed. In performing his duties, the agent, as he
anticipates the need for funds, shall notify the parties and each party shall within forty -
five (45) day pay the agent, who shall maintain a trustee account and also maintain
accurate accounting records which are to be available upon request. All such records
shall be retained by the agent for five years.
Should any LOT OWNER fail to pay the pro rata share of costs and expenses as
provided in the Agreement, then the agent or any LOT OWNER or LOT OWNERS
shall be entitled without further notice to institute a legal action for the collection of
funds advanced on behalf of such LOT OWNER in accordance with the provisions of
California Civil Code Section 845, and shall be entitled to recover in such action in
addition to the funds advance, interest thereon at the current prime rate of interest,
until paid, all costs and disbursements of such action, including such sum or sums as
the Court may fix as and for reasonable attorney's fees.
Any liability of the LOT OWNERS for personal injury to the agent hereunder, or to any
worker employed to make repairs or provide maintenance under this Agreement, or to
third persons as well as any liability of the LOT OWNERS for damage to the property
of agent, or any such worker, or of any third personas, as a result of or arising out of
repairs and maintenance under this Agreement, shall be borne as between the LOT
OWNERS in the same percentages as they bear the costs and expenses of such
repairs and maintenance. Each LOT OWNER shall be responsible for and maintain
his own insurance, if any. By this Agreement, the parties do not intend to provide for
the sharing of liability with respect to personal injury or property damage other than
that attributable to the repairs and maintenance undertaken under this Agreement.
Each of the LOT OWNERS agrees to indemnify the others from any and all liability for
the injury to him or damage to his property when such injury or damage results from,
arises out of, or is attributable to any maintenance or repairs undertaken pursuant to
the Agreement.
10. LOT OWNERS shall jointly and severally defend and 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, claims, damages, losses,
expenses, personal injury and other costs, including costs of defense and attorney's
fees, incurred by or payable to any other LOT OWNER, any user of the PRIVATE
STREET, or to any other third parties arising out of or in any way related to the use,
repair or maintenance of the PRIVATE STREET. Nothing in this Agreement, the
specifications, or other contract documents or CITY's approval of the plans and
specifications for or inspection of the work regarding the PRIVATE STREET is
intended to include a review, inspection, or acknowledgement 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.
11. If in the CITY's sole judgment the PRIVATE STREET is not being maintained to
standards set forth in paragraph 4 of this Agreement, the CITY may thereupon provide
written notice to all LOT OWNERS to initiate repairs or construction within ninety (90)
days. Upon failure to demonstrate good faith to make repairs or construction within n
ninety (90) days of receipt of such notice the LOT OWNERS agree that the CITY may
makes all needed repairs to the PRIVATE STREET to meet
the standards set forth in paragraph 4 and to then assess the costs thereof to all LOT
OWNERS proportionately. Nothing herein shall be deemed to be any obligation on
the party of CITY to perform such repairs and neither the DEVELOPER nor any LOT
Page 3
OWNERS shall be entitled to force CITY to make any such repairs
12. If the CITY elects to make necessary repairs in accordance with paragraph 11 above,
said work shall be without warranty. Said repair shall be accepted "as is" by the LOT
OWNERS without any warranty of workmanship and be guaranteed and indemnified
by the OWNERS or their successors in interest in accordance with paragraph 11.
13. The foregoing covenants shall run with the land and shall be deemed to be for the
benefit of the land of each of the LOT OWNERS and each and every person who shall
at any time own all or any portion of the PROPERTY referred to herein.
14. It is understood and agreed that the covenants herein contained shall be binding on
the heirs, executors, administrators, successors and assigns of each LOT OWNER.
15. It is the purpose of the signatory hereto that this instrument be recorded to the end
and intent that the obligations hereby created shall be constitute a covenant running
with the land and any subsequent purchaser of all or any portion of the PROPERTY,
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.
16. The terms of this Agreement may be amended in writing upon approval of the LOT
OWNERS and consent of the CITY. The City's consent shall be in its discretion.
17. This Agreement shall be governed by the laws of the State of California. In the event
that any of the provisions of this Agreement are held to be unenforceable or invalid by
any court of competent jurisdiction, the validity and enforceability of the remaining
provisions shall not be affected thereby. Any action to interpret or enforce this
Agreement shall be brought in the Superior Court of California, San Diego County, in
San Diego. DEVELOPER, on behalf of himself and each and every LOT OWNER
having an interest in the PROPERTY, hereby waive any right to remove any such
action from San Diego County as is otherwise provided in California Code of Civil
Procedure section 394.
Page 4
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set
forth hereinafter.
OWNER: William E. Bourgeois
Date:
William E. Bourgeois
AKA A i �-� arv\ 1a0 V rq eo%
CITY OF POWAY: d
Date: lL IVII,(
teven R. Crosby, City Engineer
Signatures Must Be Notarized
Approved as to Form
Office of the City Attorney
Morga L. F le , City ttorney
City o y
Page 5
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189
A notary public or other officer completing this certificate verifies 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 of California
County of 57j n ZiI GAO
On I Z /ZO // b before me, Mall i Cc? T_ CY1d r-h O C Z I11 () kdrM '"J'P('% C
Date Here Insert Name and Title of the Officer
personally appeared 21 IV I )Q Ji U 2 of S
Name(s) of Signer(s)
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 /she /they executed the same in
his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s),
or the entity upon behalf of which the 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 my hand and official seal.
MONICA I. MARTINEZ `
Commission N 2115964 (�
Notary Public - California > Signature
San Diego county Signature of Notary Public
MW Comm. E 2res Jun 18, 2019
Place Notary Seal Above
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Signer Is Representing: _
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — Limited ❑ General
❑ Individual I -' Attorney in Fact
❑ Trustee Guardian or Conservator
7 Other:
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A notary public or other officer completing this certificate verifies 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 of California
County of San �ieaC�
On 121 'Z S (Cc before me, Moo0 C ,� ,nut; YVI PJ6 11C
Date C Here Insert Name and Title of the Officer
personally appeared 1C J e 11 cc 0 S b w
Name(s) of Signer(s)
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 /she /they executed the same in
his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s),
or the entity upon behalf of which the 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 my hand and official seal.
MONICA I. MARTtNEt r,'I '—
Commiesion #� 2115964 Signature C�
Z •� Nolory Public - California i
Z Son Diego County ' Signature of Notary blic
Mv Comm. Expires Jun 18, 2019'
Place Notary Seal Above
OPTIONAL
Though this section is optional, completing this information can deter alteration of the document or
fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document:
Number of Pages:
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
EXH IBIT A
RANCHO DE ORO ROAD (PRIVATE STREET
POWAY, CAL /PORN /A
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LEGAL DESCRIPTION OF PROPERTY
ALL THAT PORTION OF THE SOUTH HALF OF THE NORTHWEST QUARTER OF
SECTION 8, TOWNSHIP 14 SOUTH, RANGE 1 WEST, SAN BERNARDINO
MERIDIAN, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, LYING SOUTHERLY OF THE CENTERLINE OF ROAD SURVEY 472
AND ROAD SURVEY 1713, KNOWN AS POWAY ROAD, ON FILE IN THE OFFICE OF
THE COUNTY ENGINEER OF SAID COUNTY.
EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE COUNTY OF SAN
DIEGO BY INSTRUMENT RECORDED APRIL 24, 1973 AS FILE NO. 73- 108328 OF
OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM THAT PORTION AS GRANTED TO THE COUNTY
OF SAN DIEGO BY DEED RECORDED APRIL 23, 1980 AS FILE NO. 80- 136797 OF
OFFICIAL RECORDS.
ASSESSOR'S PARCEL NUMBER: 321 - 271 -06
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