Road Construction and Maintenance Agreement 1996-0215032
1052
uuC " 1996-0215032
30-APR-1996 08=06 AM
OFFICIAL RECORDS
SAH DIEGO COUHTV RECORDER'S OFFICE
GREGORY SMITH, COUHTY RECORDER
RF: 11.00 FEES: 25.00
AF: 13.00
Mr: 1. 00
'RECORDING REQUESTED BY:
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AND WHEN RECORDED MAIL TO: )
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CITY OF POWAY
CITY CLERK
CITY -OF POWAY
P.O. BOX 789
POWAY, CA 92074
(This space for Recorder's Use)
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ROAD CONSTRUCTION AND
MAINTENANCE AGREEMENT
The purpose of this Agreement is to provide adequate roadways within the City
of Poway and maintenance of same. This Agreement is executed 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 run
with the land in perpetuity as a covenant upon the property described herein.
The standard for improvement will be that standard 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 by
the regulatory ordinances of the City of Poway. The construction described
herein shall be accomplished 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 this Agreement and their heirs, executors, administrators,
assigns, and successors in interest, upon all of whom this Agreement shall be
binding. The City of Poway shall not be deemed a 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,"
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 discretion 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 "B" and
made a part hereof.
3. CONSTRUCTION AND ROUTINE MAINTENANCE. The cost of construction,
capital improvements and/or routine maintenance resulting from ordinary wear
and tear shall be borne 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 occasion to use the full course of said
private road. Given such circumstances, fairness dictates that only
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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 be certain persons, because
situated further from the road entrance and beyond the property
perimeters or boundaries 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 structure which is
used not more than 30% of the time, 10 additional points.
(Housing for agricultural workers shall not be deemed a
"residential structure." 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.
(5) For any vehicle one tone or over, registered to the owner of any
parcel and used by same over any portion of said road f~r 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
65% of its length; from there to Band C's farthest boundary is 35%
of its length; from that point, the end of the road, D's preperty
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 questions is $10,000; repair of
the gate is $2,000.
B 40 acres
ROAD D 10 acres
C 20 acres
A 20 acres T
Solution to Example: (see graph)
Cost of the gate and 65% of the road is shared by all. Thirty-five
percent of the road cost is shared only by B, C, and D. Ratio of
sharing is determined by the following point of allocation:
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OWNER ACRES GROVE TOTALS
A 10 20 30
B 10 40 50
C 10 20 20 40 90
D 10 10 20
TOTAL POINTS 190
As to $B,500 of the cost: (65% of road and gate)
A pays 30j190ths or $ 1,342.10
B pays 50j190ths or $ 2,236.84
C pays 90j190ths or $ 4,026.31
D pays 20j190ths or $ 894.75
As to $3,500 additional cost: (35% of road)
B pays 50j160ths or $ 1,094.00
C pays 90/160ths or $ 1,969.20
D pays 20j160ths 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 purposes as
in Example 1.
B
40 acres
D
10 acres
ROAD
A
20 acres
C
20 acres
Solution to Example: (see graph)
~ OWNER ALL ACRES GROVE I RES I 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
B pays 50j190ths
C pays 90/190ths
D pays 20j190ths
or
or
or
or
$ 1,894.73
$ 3,158.00
$ 5,684.40
$ 1,263.20
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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
extraordinary 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 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 agreeable to the majority of parties, shall
be the system .utilized.
b. "Majority" is any group of 1 andowners ho 1 di ng 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.
c. Achievement of the minimum 51% consensus respecting maintenance shall
be evidenced by a written statement, signed by parties purporting to
constitute such representation. A copy of the written statement
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 maintenance 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.
7. ARBITRATION. Any dispute among any of the parties to this Agreement
respecting the interpretation of the Agreement or the application of any of
its terms or the action taken by any party in accordance therewith, shall be
se~tled by arbitration pursuant to the Civil Code.
8. FINDING. The City of Poway finds that failure to maintain private
road to standards prescribed by law adversely impacts upon the health, safety,
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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 judgement said private road has not
been maintained to specifications set forth pursuant to City
Ordinances or other 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 (3D)
days. Should said parties fail to demonstrate 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 for the herein-described 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 material breach of the
agreement. The City shall thereupon be entitled to commence
litigation in any court of competent jurisdiction for the recovery of
all of said costs. In the event of such litigation, the City shall
be further entitled to the recovery of its attorney fees and legal
costs reasonably incurred therein.
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, claims, damages, losses, expenses, and other costs,
including costs of defense and attorney's fees, arising out of or
resulting from or in connection 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 subcontractor, 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 specification acknowledgment of a responsibility for any
such matter, and City, City's Engineer, and their consultants, and
each if 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 owners without any warranty of workmanship.
Said repair shall be guaranteed and indemnified by property owner in
accordance with subparagraph (c).
9. COVENANT RUNNING WITH LAND. This Agreement shall be deemed and is ..
intended to run with the land and be, a 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
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" time as the said private road shall be dedicated to and accepted for use as a
public street or thoroughfare by municipal government lawfully exercising
jurisdiction over said private road.
10. RECORDING OF AGREEMENT. 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 a restriction upon 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
restriction therein created, 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 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:
Tax Assessor's Number .3 \ 1. 500- 81
OWNERS K&NNETI-I::r. FR:ENCH-
Type or Print
Date 4-11-9(0
~~~{). ~~
S nature \.
Type or Print
Signature
(Notary Acknowledgment attached) (Each owner shown on Grant Deed must sign)
Tax Assessor's Number ~\I-SOO.<B\
OWNERS \(ENN~.::r. "fR.I;:NCI+
Type or Print
Type or Print Signature
(Notary Acknowledgment attached) (Each owner shown on Grant Deed must sign)
ACCEPTED :
CITY OF POWAY
By ~~5 Jt/~
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1058
CAL~FORNIA ALL.PURPO&.:. ACKNOWLEDGMENT
I~~.~~:~t
~ @ COMM. # 1060416 il
$ ~ Nolary NlIc - CaIforia ~
I - SAN DIEGO COUN1Y
J ~ ~ _ _ ~~.~.~Y~l. ~~I
Name and Title of Officer (e.g., "Jane Doe, Notary Public")
F ~'t.f\J c..1....
Name(s) of Signer(s)
D personally known to me - OR ~roved to me on the basis of satisfactory evidence to be the person~
whose name~ is!1lf&subscribed to the within instrument
and acknowledged to me that he/e~e!lR8Y executed the
same in hislRe,:tl ,,,;, authorized capacitytiee), and that by
his/h!!I,~Rejr signaturetsj on the instrument the person~
or the entity upon behalf of which the person~cted,
executed the instrument.
State of CA l \. Co ( ^ lo.....
Counlyof ~ 'j) /(.60
On If - /, -<;(, before me, ~M..(,"'" S. f..IosL<iA."~~
Date
personally appeared J<'et\f'\~ +h J'".
I'ub/ ,
,
I,.
WITNESS my hand and official seal.
f('()~o~t,~pu~(b --
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Title or Type of Document:~ (ONS'(It!JC..TION (~r.vvc.L
Y-I\ -q'
Document Date:
Number of Pages:
6
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: K Ii I\JNL -r h :r. FI'2!!VJd,.
Signer's Name:
'ji:1> Individual
D Corporate Officer
Title(s):
D Partner - D Limited D General
D Attorney-in-Fact
D Trustee
D Guardian or Conservator
D Other: Top of thumb here
RIGHT THUMBPRINT
OF SIGNER
D Individual
D Corporate Officer
Title(s):
D Partner - D Limited D General
D Attorney-in-Fact
D Trustee
D Guardian or Conservator
D Other: Top of thumb here
RIGHT THUMBPRINT
OF SIGNER
Signer Is Representing:
Signer Is Representing:
It> 1994 National Notary Association' 8236 Remmet Ave., P.O. Box 7184' Canoga Park, CA 91309-7184
Prod. No.S907
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