Private Road Maintenance Agreement 1995-0516275
~oc " 1995-0516275
~4-HOU-1995 08:54 AM
When recorded, please mail to:
:422
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
GREGORY SMITH, COUNTY RECORDER
RF' 12.00 FEES: 2B.00
AF: 15.00
MF: 1.00
RECORDING REQUESTED BY
THE CITY OF POWAY
City Clerk
City of Poway
P.O. Box 789
Poway, Ca. 92074
PRIVATE ROAD MAINTENANCE AGREEMENT
THIS AGREEMENT for the maintenance and repair of that certain
private road easement, the legal description and/or plat of which
is set forth in Exhibit "A" attached hereto and made a part hereof,
is entered into between Paul Howard Coleman, Jr. and Mary Barbara
Coleman, Trustees to Paul Howard Coleman, Jr., and Mary Barbara
Coleman Trust, dated may 24, 1991 hereinafter referred to as
"DEVELOPER") and the city of poway (hereinafter referred to as
"CITY") for the benefit of future parcel owners who will use the
private road easement (hereinafter referred to as "PARCEL OWNERS",
which shall include the DEVELOPER to the extent the DEVELOPER
retains any ownership interest in any parcel of parcels) .
WHEREAS, this Agreement is required as a condition of approval
by the CITY of a development project as defined in section 21065 of
the Public Resources Code; and
WHEREAS, DEVELOPER is the owner of certain real property being
subdivided and developed as TPM 92-05 that will use and enjoy the
benefit of said road easement. A complete legal description of
said real property is attached, labeled Exhibit B, and incorporated
by reference. Said real property is hereinafter referred to as the
PROPERTY; and
WHEREAS, it is the mutual desire of the parties hereto that
said private road easement be maintained in a safe and usable
condition by the parcel owners; and
WHEREAS, it is the mutual desire if the parties hereto to
establish a method for the maintenance and repair of said private
road easement and for the apportionment of the expense of such
maintenance and repair among existing and future PARCEL OWNERS; and
WHEREAS, the 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 Agreement; and
WHEREAS, it is the mutual intention of the parties that this
Agreement constitute a covenant running with the land, binding upon
each successive PARCEL OWNER of all or any portion of the PROPERTY,
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1423
1. COVENANTS TO RUN WITH LAND. The PROPERTY is benefitted
by this Agreement, and present and successive PARCEL OWNERS of all
or any portion of the PROPERTY are expressly bound hereby for the
benefit of the land. The foregoing covenants shall run with the
land and shall be deemed to be for the benefit of the land of each
of the PARCEL OWNERS and each and every person who shall at anytime
own all or any portion of the PROPERTY referred to herein. It is
understood and agreed that the covenants herein contained shall be
binding on the heirs, executors, administrators, successors, and
assigns of each of the PARCEL OWNERS. It is the purpose of the
signators hereto that this Instrument be recorded to the end and
intent that the obligation hereby created shall be and constitute
a covenant running with the land and any subsequent Purchaser of
all or any portion thereof, by acceptance of delivery of a deed
and/or conveyance regardless of form, 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 institute legal action as provided in
paragraph 8 hereof, such remedy to be cumulative and in addition to
other remedies provided in this Agreement and to all other remedies
at law or in equity.
2. DIVISION OF COST. The cost and expense of maintaining
the private road easement shall be divided equally among the
subdivided parcels created in the subdivision and paid by the
PARCEL OWNER or the heirs, assigns and successors in the interest
of each such owner.
3. NEW PARCELS. In the event any of the herein described
parcels of land are subdivided further, the PARCEL OWNER, heirs,
assigns and successors in interest of each such newly created
parcel shall be liable under this Agreement for their then pro rata
share of expenses. The pro rata shares of expenses shall be
computed by dividing the expenses by the total number of parcels
after the subdivision.
4. REPAIRS AND MAINTENANCE. The repairs and maintenance to
be performed under this Agreement shall be limited to the
following: reasonable and normal road improvement and maintenance
work to adequately maintain said private road easement and related
drainage facilities to permit all weather access. Additional work
may only be performed if agreed to by a unanimous vote of the
PARCEL OWNERS owning 100% of the PROPERTY.
Repairs and maintenance under this Agreement shall include, but not
be limited to, filling of chuckholes, repairing cracks, repairing
and resurfacing of roadbeds, repairing and maintaining drainage
structures, removing debris, maintaining traffic and parking signs,
markers, striping and lighting, if any, and other work reasonably
necessary or proper to repair and preserve the easement for all
weather road proposes.
----..-.----.-------....---
1424
5. CONSTRUCTION OF IMPROVEMENTS. If there is a covenant,
agreement, or other obligation imposed as a condition of
subdivision approval to make private road improvements to the
private road easement, the obligation to repair and maintain the
private road easement as herein set forth shall commence when the
private road improvements have been completed and approved by the
CITY. Nothing herein shall create liability on the part of any
Parcel Owner to construct, improve, or contribute to the capital
improvement cost of any improvements to the PROPERTY.
6. DAMAGE TO IMPROVEMENTS. Any extraordinary or remedial
repair required to correct damage to said road easement that
results from the action, inaction, omission or failure of any
party, their agents, or successors shall be the responsibility of
such party. The responsible party shall restore the road easement
to the condition existing prior to said damage.
7. MANAGING AGENT. It is agreed that DEVELOPER is initially
the Managing Agent to contract and oversee and do all acts
necessary to accomplish the repairs and maintenance required and/or
authorized under this Agreement. Developer may be replaced if he
fails to: (i) properly maintain the PROPERTY, (ii) comply with the
terms of this Agreement, or (iii) transfers his parcel to a third
party. In such an event, the majority of Parcel Owners may appoint
a successor Managing Agent. Repair and maintenance work on the
private road easement shall be commenced when three or more of the
lot owners agree in writing that such work is needed. The Managing
Agent shall obtain three bids from licensed contractors and shall
accept the bid which is offered by a qualified, competent
contractor and is low, but not necessarily lowest. The Managing
Agent shall be paid for all costs incurred, including reasonable
compensation for the Managing Agent's services. The charges for
Managing Agent's services shall in no event exceed an amount
equivalent to 10% of the actual cost of repairs and maintenance
performed. In performing his duties, the Managing Agent, as he
anticipates the need for funds, shall notify the parties and each
party shall within forty-five (45) days pay the Managing Agent, who
shall maintain a trustee account and also maintain accurate
accounting records which are to be available for inspection by any
party or authorized agent upon reasonable request. All such
records shall be retained by the Managing Agent for a period of
five years.
8. FAILURE TO CONTRIBUTE. Should any PARCEL OWNER fail to
pay the pro rata share of costs and expenses as provided in this
Agreement, then the Managing Agent or any PARCEL OWNER(S) shall be
entitled without further notice to institute legal action for the
collection of funds advanced on behalf of such PARCEL OWNER(S) 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 advanced, interest thereon (computed at the prime rate of
interest quoted for commercial banks in the Wall Street Journal at
the time of completion of repairs) until paid, all costs and
disbursements of such action, including such sums as the Court may
.---------.-...-----
fix as and for reasonable attorney fees.
1425
9. LIABILITY. Any liability of the PARCEL OWNERS for
personal injury to the Managing 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
PARCEL OWNERS for damage to the PROPERTY of Managing Agent, or any
such worker, or of any third persons, as a result of or arising out
of repairs and maintenance under this Agreement, shall be borne, as
between the PARCEL OWNERS in the same percentages as they bear the
costs and expenses of such repairs and maintenance. Each PARCEL
OWNER shall be responsible for and maintain his own premises
liability insurance coverage for their PROPERTY, including the
easement. Such insurance shall name the other Parcel Owners as
"additional named insured". 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 PARCEL OWNERS agrees to indemnify the others from and
against any and all liability for 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 this Agreement.
10. CITY INDEMNITY. PARCEL 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, to the
Managing Agent hereunder, or to any PARCEL OWNER, any contractor,
any subcontractor, any user of the road easement, or to any other
third persons arising out of or in any way related to the use of,
repair or maintenance of, or the failure to repair or maintain the
private road easement.
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.
11. AMENDMENT. The terms of this Agreement may be amended in
writing upon unanimous approval of the PARCEL OWNERS and consent of
the CITY.
12. LAW VENUE. This Agreement shall be governed by the laws
of the State of California. In the event that any of the
provisions of the Agreement are held to be enforceable or invalid
by any court of competent jurisdiction, the validity, and
enforceability of the remaining provisions shall not be affected
thereby.
ACCEPTED:
CITY OF POWAY
BY --:?YlV'lL 5. t'v'0~
APP~.O. v _ as . form:
.~~
. / '/ '
(. ..~/ l.. ,. t--
City ~ney
c:\rd\wp50\jr.\cole.an\road,Agr
09/23/93 3:00p.
DATE
DATE
----- -'-'--~'-'~-"'-""'--"-""--'-------'-----'---"--'---...---
1426
/1/3/1;
/ /
1/,7- r-s--
1427
/3
the parties have executed
(k,(~
this Agreement on
IN WITNESS WHEREOF,
day of
, 1993.
PAUL HOWARD COLEMAN, JR. AND MARY BARBARA COLEMAN, TRUSTEES OF THE
PAUL HOWARD COLEMAN, JR., AND MARY BARBARA COLEMAN TRUST,
DATED MAY 24, 1991.
~""~~"^"~
PAUL HOWARD COLEMAN, JR. 4 1_
Trustee , '^-'')~
~
15----""
-t VU'1>k
STATE OF CALIFORNIA)
)
COUNTY OF SAN DIEGO)
onkll /3, ,h\ -3
ss.
1993, before me, / U (//) (f:;,(c/
, a tary P. blic, per na;~ appeared
i... l L. /f~;4 -' ersonally
known to me or proved to me on the s~s of sat~sfactory evidence
to be the person~ whose name~) ~are subscribed to the within
instrument and acknowledged to me that he/l!ne/they executed the
same in his/her/their authorized capacity (iesJ , and that by
his/hcL/Lheir signature~ on the instrument the person~, or the
entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
,- J1 U;d:
Signature -,~/( <. (t( <''-., ..~
(SEAL)
.~""'.
<.
.~5:~
LUCIA OGlE
~OM~ #985597 RI
BR'-
t =
g \,
Ni'
~,
- .... ..,,; ,'" -.;~ .~:
\~\i! ,b.d "hAUtib~i
."' "-",
'.
EXHIBIT 'A'
1428
THAT PORTION OF THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 14,
TOWNSHIP 14 SOUTH, RANGE 2 WEST, SAN BERNARDINO MERIDIAN, IN THE COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, AND FURTHER DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWESTERLY CORNER OF THE LAND CONVEYED TO PAUL HOWARD
COLEMAN, JR. AND MARY BARBARA COLEMAN, TRUSTEES OF THE PAUL HOWARD COLEMAN,
JR., AND MARY BARBARA COLEMAN TRUST, DATED MAY 24, 1991 BY INDIVIDUAL GRANT
DEED RECORDED DECEMBER 31, 1992 AS DOCUMENT NO. 1992-0846079 OF OFFICIAL REC-
ORDS; THENCE ALONG THE WESTERLY BOUNDARY OF SAID LAND, SOUTH 0043'32" WEST,
85.77 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG SAID WESTERLY
BOUNDARY SOUTH 0043'32" WEST 21.00 FEET; THENCE SOUTH 89016'28" EAST 72.79 FEET
TO THE BEGINNING OF A 28.00 FOOT RADIUS CURVE THAT IS CONCAVE SOUTHWESTERLY;
THENCE EASTERLY, SOUTHEASTERLY AND SOUTHERLY ALONG THE ARC OF SAID CURVE,
THROUGH A CENTRAL ANGLE OF 90001'03", A LENGTH OF 43.99 FEET; THENCE SOUTH 00
44'35" WEST 73.64 FEET TO THE NORTHERLY RIGHT OF WAY OF OAK KNOLL ROAD; THENCE
NORTH 85025'21" EAST ALONG SAID RIGHT OF WAY, 21.09 FEET; THENCE NORTH 0044'35"
EAST, 71.71 FEET TO THE BEGINNING OF A 28.00 FOOT RADIUS CURVE THAT IS CONCAVE
SOUTHEASTERLY; THENCE NORTHERLY, NORTHEASTERLY AND EASTERLY ALONG THE ARC OF SAID
CURVE, THROUGH A CENTRAL ANGLE OF 89058'56", A LENGTH OF 43.97 FEET; THENCE NON-
TANGENT AND RADIAL TO SAID CURVE NORTH 0043'31" EAST 21.00 FEET; THENCE NORTH 890
16'28" WEST, 149.79 FEET TO THE TRUE POINT OF BEGINNING.
EXHIBIT 'B'
1429
TP~T PORTION OF THE SO~ST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 14,
TO"~SHIP 14 SOUTH, RANGE 2 "~ST, SAN,BERNARDINO MERIDIAN, IN THE COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
COMMENCING AT A POINT 20 FEET WEST OF THE .~STERLY LINE OF MISSION ROAD, WHICH SAID
POINT OF COMMENCEMENT BEARS NORTH 40 23' 19" .~ST 449.58 FEET FROM THE INTERSECTION
OF THE SOUTHERLY LINE OF SAID SECTION.14 WHICH THE CENTER LINE OF SAID MISSION ROAD
AT STATION 378 PLUS 70.9 THEREOF, AS SHOWN ON MAP OF MISSION ROAD I-A, SHEET 15, SAN
DIEGO COUNTY HIGHWAY COMMISSION, RECORDS OF.THE COUNTY SURVEYOR OF SAID SAN DIEGO
CO~7Y; THENCE SOUTH'oo 43' WEST PA~~LEL WITH THE .~STERLY LINE OF SAID MISSION ROAD
186.23 FEET TO THE BEGINNING OF A T~uENT 25 FEET RADIUS CURVE CONCAVE NORTHh~STERLY;
THENCE SOUTHWESTERLY ALONG SAID CURVE, THROU3H A CENTRAL. ANGLE OF 840 42' A DISTANCE
OF 36.96 FEET; THENCE TANGENT TO SAID CURVE, SOUTH 850 25' WEST 399.54 FEET TO THE
TRUE POINT OF BEGINNING OF THE HEREIN DESCRIBED PROPERTY; THENCE CONTINUING SOUTH 850
25' .~ST 200.86 FEET; THENCE NORTH 00 43' EAST 217.80 FEET; THENCE NORTH 850 25' EAST
200.86 FEET; THENCE SOUTH 00 43' WEST 217.80 FEET TO THE TRUE POINT OF BEGI~~ING.