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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.