Private Streets Maintenance Agreement 2005-0891261
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, . 2005-0891261
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, First -!l1Iericall Title
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RECORDING REQUES:rED BY' ....--, OCT 14. 2005 11 49 AM
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City of Po way \I)f -".::.JJ [IIEC;u cuur'lT'i F-:ErOR[IEF:'~, OFFIi~E
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AND WHEN RECORDED MAJL TO' \ lO""/ ,
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CitY Clerk i 11111111111 1111111111 11111111111111111111111111111111111111111111 11111111111111
City of Po way
POBox 789 2005-089'1261
Poway, CA 92074 \}\) '2, ~
(Space Above for Recorder's Use)
PRIVATE STREETS MAINTENANCE AGREEMENT i
,
TillS PRIV ATE STREETS~NANCE AGREEMENT ("Agreement") dated for
reference purpo~es as of the ~. day of f'Uf{M6fP- , 2005, is entered into between
~ RESERVE AT POWAY, L.p., .a California limited partnership ("Developer"), PAUL N.
BOTHWELL,.amarried man as his sole and separate property, (hereinafter collectively referred
to as "OWNERS" or individually as an "OWNER"), and the CITY OF POW A Y, a municipal
cOIporation, hereinafter referred to as "CITY "
WHEREAS, this Agreement is required as a condition of approval by the CITY of a building
permit pursuant to Section'17.52:0,!:0 of the Municipal Code and Ordinance 303 and 304 relative
to construction of single family resiaences at The Reserve at Poway; and
WHEREAS, OWNERS wish to provide for the maintenance and repair of those certain
PRIVATE STREETS shoWn ,.on Exhibit A attached hereto and made a part hereof, hereinafter
referred to as the "PRIVATE StREETS", and
WHEREAS, OWNERS are t1ie'oWners of certain real property being developed as single family
residences at The Reserve ai Poway that will use and eJ.1joy the benefit of such PRIVATE
STREETS. A complete legal description of said real property isinc1uded in Exhibit B attached
hereto ,and made a part hereof. Said real property is hereinafter referred to as the "Property";
and
WHEREAS, it is the mutual desire of the parties hereto that the PRIVATE STREETS to be
maintained and repaired in a safe and usable condition; and
WHEREAS, it is the mutual intention of the parties that this Agreement constitute a covenant
running with the Property, binding upon each successive owner, of the Property
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS
City of Poway
Private Streets Maintenance Agreement
21239-00011/2052420.3 8116/05
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1 The property-'benefited by this Agreement is the Property The present and successive
oWners of ' all or any portion ofthe Property are expressly bound-hereby for the benefit of
!he,ProjJerty;
2. The cost of maintaining the PRIVATE STREETS shall be borne by the OWNERS or
their assigns, and successors in interest, as further provided below
3. The repairs and maintenance to be performed under this Agreement by or on behalf of the
OWNERS shall be limited to the fol1owing: reasonable and normal road improvement
maintenance work to adequately maintain the PRIVATE STREETS and any related
drainage facilities to permit normal access, ingress and egress to and from the Property
Repairs and maintenance under this Agreement shal1 inClude, but are not limited to,
fil1ing of chuckholes, .repairing cracks, repairing and resurfacing of roadbeds, repairing
and maintaining drainage structures, removing debris, maintaining signs, markers,
striping and lighting, if any, and such other work as is reasonably necessary or proper to
repair and preserve the PRIVATE STREETS for normal access, ingress and egress
purposes.
4 1t is agreed that Developer is initial1y the agent to contract and oversee and do all acts
necessary to accomplish the repairs and maintenance to the PRIVATE STREETS
required and/or authonzedunder this Agreement The OWNERS shall indemnify,
defend and hold harmless ;l)eveloper from and against any and al1liability arising out of
or otherwise resulting from its agency hereunder. Upon the sale of the last lot in the
Property, Developer's'agency shal1 automatically terminate and Developer shall have no
further obligation with regard to its agency If thePRIV A TE STREETS require
maintenance, repair or replacement after the termination of Developer's agency, any
OWNER shal1 have the right to give thirty (30) days advance written notice to the other
OWNERS requesting participation on an equal basis in maintaining, repairing or
restoring the PRIVATE STREETS. Maintenance, repair and replacement work on the
PRIVATE. STREETS shal1 be commenced when a majority of the OWNERS agree in
writing that such work is needed. Each OWNER shal1 contribute to the cost of such
maintenance, repair and/or replacement work on an equal basis.
5 Any extraordinary repair required to correct damage to the PRIVATE STREETS that
results from action taken or contracted for by any OWNER or its successors in interest
shall be paid for .by the OWNER taking action or OWNER contracting for work which
caused the necessity for the extraordinary repair. The repair shal1 be such as to restore
the PRIVATE STREETS to the condition existing prior to said damage.
6. The obligation of the OWNERS as outlined herein shall commence with the issuance of a
building permit by the CITY to construct single family homes at The Reserve at Poway
7 In the event the OWNERS retain a contractor to perform any maintenance and obligation
with respect to the PRIVATE STREETS, the OWNERS shall require such contractor to
maintain liability insurance to cover any liability arising as a result of its activities with
regard to such maintenance activities.
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City of Po way
Priva~e Streets Maintenance 'Agreement
21239~OOOll /2052420.3 8/16/05
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8. ,Shcilild any OWNER fair to pay the pro rata share of costs and expenses as provided in
this Agre,emeiit, then any, of, the OWNERS shall be entitled without further notice to
institute legal action for the collection of funds advanced ~n behalf of such 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 advanced,)Ilterest 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 a reasonable attorneys' fees.
9 Any liability of the OWNERS for personal injury to any worker employed to make
repairs or provide maintenance under this Agreement, or to:third persons, as a result of or
arising out of repairs and maintenance under this Agreement, shall be borne, in the same
percentages as they bear the costs and expenses of such repairs and maintenance. Each
OWNER shall be responsible for and maintain its 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 uh-der this Agreement. The OWNERS agree to indemnify the
others from any and all liability for injury to it or d"amage to its property whenl such injury
or damage results from, arises out of, or is attributable to any maintenance or repairs
undertaken pursuant to this Agreement.
10. OWNERS shall 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 allliabi]ity, claims, damages, losses, expenses, personal injury and other
costs, including costs of defense and attorney's fees, incurred by or payable to any other
use ofthe.pRIV ATE STREETS, or to any other third parties arising out of or in any way
related to the use, repair Of .maintenance of the PRIVATE STREETS. Nothing in this
Agreement, the specifications, or other contract documents Dr CITY's approval of the
plans and specifications for or inspection of the work regarding the PRIVATE STREETS
is intended to include"a review, inspection, or acknowledgement of a responsibility for
an) such matter, and CITY, CITY's engineer, arid their consultants, and each of their
officials, directors, officers, employees and agents shall have absolutely no responsibility
or liability therefore.
1] If in the CITY's sole judgment the PRIVATE STREETS are not being maintained to
standards set forth in paragraph 3 of this Agreement, the CITY may thereupon provide
written notice to the OWNERS to initiate repairs or construction within ninety (90) days.
UPDn failure to demonstrate good faith to make repairs or construction within ninety (90)
days of receipt of such notice the OWNERS agree that the CITY may make all needed
repairs to the PRIVATE STREETS to meet the standards set forth in paragraph 3 and to
then assess the costs thereof to the OWNERS. The OWNERS shall reimburse the CITY
for all reasonable costs incllITed by the CITY in connection with such maintenance
activities. If the OWNERS do not so reimburse the CITY within thirty (30) days after
CITY's demand, then CITY may pursue all of its remedies at law or in equity
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City of Po way
Private Streets Maintenance Agreement
21239.00011 /2052420.3 8/16/05
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9027
12.. .If the CITY eIects:hfuake necessary repairs in accordance with paragraph 7 above, said
~o;:k shall be withQut warranty Said repair shall be accepted. "as is" by the OWNERS
without'any warrailtyofworkmanship
13 The foregoing cpvenants shall run with the land and shall be deemed to be for the benefit
of the land of 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 the 'OWNERS.
15 It is the purpose ofthesignatory hereto that thisinstrufuent recorded to the end and intent
that the obligations hereby created shall be and 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 become bound by this Agreement.
[Remainder of Page Intentionally Left Blank]
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City of Poway
Private Streets Maintenance Agreement
21239;..QOOl] /2052420.3 8/16/05
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16. Tllis.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 enforceaoility of the remaining
provisions shall not be affected thereby
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth
hereinafter.
For OWNERS.
RESERVE AT POW A Y, LP., a California
limited partnership
BY' GDR INVESTMENTS, LLC, a California
limited liability compan s Gener Partner
BY'~ Date: '3-2.0~o'S
Nam.~ ~'8
Title: /-.I,A.<P.<Y~
PI.($;fLU cr ~ 2- I -0 <{'
Date:
PAUL N. BOTHWELL
F"#"';;z~ Date: /0 -/J,.D$"
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City of Po way
Private Streets Mairitenance Agreement
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STATE OF CALIFORNIA )
iJ ~ )
COUNTY OF Il.AV '. )
On ~ 002.1 ,2006-;'before me, ~ Jr ~ ' Notary Public,
personally appeared ~ ~ '-- -
[personally known to me] or [prov@e to me en the-~~ to be the
personW-whose nameCs)@are subscribed to the within instrull)ent and acknowledged to me that
@fshe/they executed the same ir(!Jjl;fherftheir authorized capacity~ and that b)(]iD;fherftheir
signature~on the instrument the perso~ the entity upon behalf of which the
person~) acted, executed the instrument. 1- - - - - - - -- - - - J
'''--- '. M. Hucus1 . ,
WITNESS.my hand and OffiCial.Seal.-ft. . . C?!)""lSSIO. '.'. ,.n"I..387.673.i
~ -.Notary Public,' - COIIfomlo !
~' . San DIegg,County t
. '. ~Corrm. EliPii9s 08c23:
~7 ~ ~u.-' - -- .J. - - - -, - - N
'Signature of Notary Public Place Notary Seal Above
STATE OF CALIFORNIA )
)
COUNTY OF )i1 cv,J ~ )
On ~ ..2L, 200~before me, ~)t }~ , Notary Public,
personally appeared ~~ ' ~
[personally known to me lor [prewee te me 6ft the basis of satisfaGtGl?'-<w-idenceJ to be the
person~whose namef&2@are subscribed to the within instiuinent.and acknowledged to me that
~fshefthey executed the same in d]fsfherftheir authorized capacity(i~and that bywfherftheir
signaturetst-oh the instrument the person\s}-&r the entitY upon behalf of which the
person~acted, executed the instrurnent.I-'-' - - - - M.~ L~U~U;\ - - J
. CClIT1ITlI$!ion" 1387673
WITNESS my hand and official seal. . .Notcllv F'ubIIC;;'- CoIWomlo f
San DIegg County
~ .. ~Comm.Eipleso8c23. 2Xl6
~~~
Signature of Notary Public Place Notary Seal Above
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City of Poway
Private Streets Maintenance Agreement
21239~00011 J 2052420.3 8116/05
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SUBORDINATION AGREEMENT
The undersigned, as holder of the beneficial interest in that certain Deed of Trust dated
September I, 2004 ,and,recorded in the Office of the County Recorder.of San Diego County on
September 15, 2004 as DocUment No. 2004-0877018, which Deed of Trust encumbers all or a
portion of the real property covered by the Declaration of Covenants, Conditions and
Restrictions of The Reserve at Poway, does hereby intentionally and unconditionally subordinate
the lien of said Deed of Trust to the Declaration of Covenants, Conditions and Restrictions and
Reservation of Easements of The Reserve at Poway recorded concurrently herewith and to which
this Subordination Agreement is attached.
Dated: ~ 6 ,200,2
By'
Name: li~t ~ b1-jJp
Title: Vn,f, pn?h it1
By'
Name:
Title:
STATE OF CALIFORNIA )
)
COUNTY OF O,QDJ(' , )
On 0::-f~ 5. 20o.2'beforeme, aal7/1:1.- L. "--0no.s , Notary Public,
personally appeared r I /~ f). (!71 le.s
[personally known to me] or [pIO. ~d te fl.~ Ull tl.~ b~is sf satisfaetCll y ~. idcHee] te be the
personEsrwhose name{sfis/aresubscribed to the within instrument and acknowledged to me that
~she/they executed the same in lHs/her/theiT authorized capacityEies}-, and that by ffie/her/-!heir
signatureEsJ on the instrument the person(<+Or the entity upon behalf of which the
persontsr acted, executed the instrument.
. ~L
WITNESS my hand and official seal. _ . '~.1641934
~1'IdlIc .~.
~cR~ . 0Iang0, c:o..ntv
" , My Comm. &pIIea.lan 7, .
Signature ofN6tary Public Place Notary Seal Above
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City of poway
Private ~treetsMaintenance Agreement
21239-00011 /2052420.3 8/16/05
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EXHIBIT "A"
PRIV ATE STREET
[Attached Hereto]
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City of Poway
Private Streets Maintenance Agreemenl
21239~OOOI1/2052420.3 8/16/05
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GRANGEPLACE $heel 1 of1Sheet 9032
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MAr NO: 14()1 t3
..... ~..- -,....., . . -.,
CITY OF POWAY TBA,CT 98-07
PRIVATE ROAD,
PUBLIC SEWER AND WATER EASEMENT
IN LOTS 4, 5 & 7
l~~ ;2
Lot 7 NOi~a\IPa\rt
MAP NO. 14018
CIWOIF POWA" TRACT 98-07
LotS
!
IN
.'-" SCALE: 1" ~50'
CHRISTENSEN ENGINEERING & SURVEYiNG ~ J I
7888 Sll \IERTON AVENUE, surre ,..1 0 50 100 150
S'N DIEGO, CAUFORNIA921211
(658)2T1-G901 F~(858)2T1..e912 FEBRUARY 16, 2005
..,.,.,....
I
_. - -- ID
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90.33
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EXHIBIT "B"
PROPERTY
Real property in the City of Poway, County of San Diego, State of California, described as
follows:
Parcell:
LOTS 2, 3, 4,5,6 AND 70FCITY OF POWAY TRACT 98C07, IN THE CITY OF POWAY,
. ,. .
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF
NO 14018, FILED. IN THE OFFICE OF THE COUNTY' RECORDER OF SAN DIEGO
COUNTY ON AUGUST 10,2000.
Parcel 2:
. I
LOT 9 OF CITY OF POWA Y TRACT 98c07, IN THE CITY OF POW A Y, COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA., ACCORDING TO MAP THEREOF NO. 14018, FILED
IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, AUGUST 10,
2000.
EXCEPTING THEREFROM THATPORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST NORTHERLY CORNER OF SAID LOT 9; THENCE ALONG
THE NORTHWESTERLY LINE OF SAID LOT 9, SOUTH 48 DEGREES 13' 06" WEST,
51.58 FEET TO A POINT ON THE NORTHEASTERLY LINE OF AN EASEMENT FOR
PUBLIC UTILITIES GRANTED TO,sAN DIEGO AND GAS ELECTRIC COMPANY PER
DEED RECORDED AUGUST 24, 1959 ON BOOK 7845, PAGE 467 OF OFFICIAL
RECORDS, THENCE ALONG THE NORTHEASTERLY LINE OF SAID EASEMENT TO
SAN DIEGO GAS AND ELECTRIC COMPANY, SOUTH 34 DEGREES 21' 27" EAST,
13718 FEET TO AN ANGLE POINT ON THE NORTHEASTERLY LINE OF SAID
EASEMENT TO SAN DIEGO GAS AND ELECTRIC COMPANY, THENCE CONTINUING
SOUTH 34 DEGREES 21' 27" EAST, I 74 FEET TO A POINT ON THE SOUTHEASTERLY
OF SAID LOT 9; THENCE ALONG THE SOUTHEASTERLY LINE OF SAID LOT 9,
NORTH 48 DEGREES 12' 59"'EAST, 10449 FEET TO THE JYfOST EASTERLY CORNER
OF SAID LOT 9; THENCE ALONG THE NORTHEASTERLY LINE OF SAID LOT 9,
NORTH 56 DEGREES 01' 16" WEST, 142.11 FEET TO THE POINT OF BEGINNING.
SAID PROPERTY BEING DESCRIBED AS PARCEL "B" IN A CERTIFICATE OF
COMPLIANCE RECORDED AUGUST 23, 2001 AS INSTRUMENT NO. 01-0600684 OF
OFFICIAL RECORDS OF SAID SAN DIEGO COUNTY
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City of Po way
Piivate.Streets Maintenance Agreement
21239...QOOII /2052420.3 8/16/0;