Private Road Maintenance Agreement 2007-0529177
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RECORDING REQUESTED BY bf';Ci:I-1Fi I 3;';'~IIH.luur:f', riEIJIFi[i[Fi
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CITY OF POW A Y 1-'~;1J- _, E
AND WHEN RECORDED MAIL TO' !111.1...I.M~llml
CITY CLERK 2007 -05291.77
CITY OF POW A Y
POBOX 789
POWAY,CA92074 *00\
NO TRANSFER TAX DUE'
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(TIllS SPACE FOR RECORDER'S USE)
323-090"-53, 323-090-59 & 67
TTM 04-02
PRIVATE ROAD MAINTENANCE AGREEMENT
THIS PRIVATE ROAD MA~TENANCE AGREEMENT ("Agreement") dated for reference
purposes as of the 27th day of February, 2007, is entered into between Ted R. Neher-III. Darlene
H. Neher. Gregg L. Brandalise.Tiha L. Brandalise and the City of Poway. hereinafter referred to
as "OWNERS" and the CITY OF POWAY, a municipal corporation, hereinafter referred to as
"CITY"
WHEREAS, the purpose of this agreement is to provide for adequate maintenance of the entire
roadway Sky Mountain Trail, Poway,_Califomia. The agreement is executed by the parties
herein, and will run with the land: in perpetuity as a covenant upon the property described herein.
The standard of improvement ,shall be that set forth by the owners of the property describt!d
herein, maintaining or exceeding the standard of improvements as they exist as of the date this
document is recorded. (Note: Welton Lane, another Private ,Road, beginning at Poway Road and
terminating at Sky Mountain Trail, is maintained under a separate Private Road Maintenance
Agreement, which the parties to this agreement mayor may not be participants in.)
WHEREAS, this Agreement isrequired as a condition of approval by CITY of a Building Permit
pursuant to Section 17.52.040 of the Municipal Code and Ordinance 303 and 304 relative to
construction of single family residences at Lots 1 - 6. of City of Powav Tract No. 04-02.
according to Map thereof No. 15407. filed August 9. 2006 as File No; 2006-0567631 in the
Officeofthe County'Reeorder of said County of San Diego, and,
WHEREAS, OWNERS wish to pr~)Vide for the maintenance and repair of the Private Road Sky
Mountain Trail. as described ,on City of Po way Tract No. 04-02. according to Map thereof No.
15407. filed August 9. 2006 as File No. 2006-0567631 in the Office o(the County Recorder of
said County ofSart Diego, hereinafter referred to as the "PRIVATE ROAD"; and
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. . . WHEREAS, Owners an~ the owners'.of certain real property being developed as single family
houses at Lots 1 - 6. of CitY. of Poway Tract No. 04-02._according to Map thereof No. 15407 ,
filed Aligust9.2006 as File No. 2006-0567631 in the, Office of the County Recorder of said
County o(San Diego. and the City o(Poway Buehler Water Tank Parcel 323-090-53 that will
use and enjoy the benefit of such Private Road. A complete legal description of said real property
is included in EXHIBIT A 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 ROAD 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 ofthe Property
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1 The property benefited by this Agreement is the Property. The present and successive
owners of all or any portion of the Property are expressly bound hereby for the
benefit ofthe Property.
2. The cost of maintaining the PRIVATE ROAD shall be,bome by OWNERS or his or
her heirs, assigns, and successors in interest.. Notwithstanding the foregoing,
OWNERS may seek contributions or recompense from'and by all other owners, heirs,
assigns and successors in interest who may be obligated under similar Privato;: RQad
Maintenance Agreements with the City of Poway relevant to this section of private
roadway.
3 Subsequent Users - In the event that an OWNER (of a parcel) which did not
originally subscribe to this Agreement wishes to participate in the Agree~cent or is
instructed to do so by the City of Poway, that OWNER (parcel) shall subscribe to this
Agreement.
4. The repairs and maintenance to be performed under this Agreement by or on behalf of
the OWNERS shall be limited to the following: reaSonable and normal road
improvement maintenance work to adequately maintain the PRIVATE ROAB and
any-related drainage facilities to permit normal access, ingress and egress to and from
the Property Repairs and maintenance under this AgreelIllcntshall include, but are not
limited to, filling of chuckholes, repairing cracks, repairing and resurfacing of
roadbeds, repamng 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 ROAD for
normal,access, ingress and egress purposes.
5. The costs of routine maintenance resulting from ordinary wear and tear shall be borne
equally by the parties in the,Road Maintenance Agreement.
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. The formula for computing the percentage to be'paid by each member in the Road
Maintenance Agreement is as follows: ,(100% (N ) where N represents the total
number of Owners in the Road Maintenance Agreement.
. Extraordinary Damage. It shall be the obligation of each party hereto to make and
pay for all repairs to road, and all related structures ( drains, dip sections, road signs,
gutters, gates, fences, etc.) when the same have been damaged by the extraordinary
use of that party or his/her agents or employees. Examples of such extraordinary
damages are those damages caused by heavy equipment, such as might be used
during construction. Ordinary use will be for passenger wear over a period of time.
Extraordinary use is causing immediate defined damage within ordinary use traffic.
6. The obligation of OWNERS as outlined herein shall commence with the issuance ofa
building permit by CITY to construct single-family dwellings at Lots I ~ 6. of City of
Powav Tract No. 04-02., according to MavthereofNo. 15407. filed August9.2006 as
File No. 2006-056763<1 in the Office of the COlmty Recorder of said County of San
Diego.
7 In the event OWNERS retain a contractor to perform any maintenance and obligation
with respect to the PRIVATE ROAD, 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.
8. This agreement is limited to reasonable and normal road irnprovement maintenance
work to adequately maintain the PRIVATE ROAD. If a property owner initiates any
other maintenance or repairs that are above the minimum standards required, said
property owner is liable for all costs in excess of reasonable and normal maintenance.
The other property owners will not be required to contribute towards those repairs
above the minimum standards, but may do so if they desire.
9. Administration of Costs - The Property owners 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 calculations 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 for the 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/her dispute or the assessment shall
conclusively be deemed his/her consent to same.
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When any assessment.sliall 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. The
prevailing party in any such court action shall be entitled to costs and reasonable
attorney's fees.
10. Liability Indemnification - In the event that liability is incurred by any party hereto
for failure to maintain the"subject road, or any portion thereof, such liability shall be
borne by the parties hereto in accordance with the percentages of the total points
allocated to each party. as calculated in Paragraph 3. Each party shall indemnify and
hold harmless each other party from any liability in excess of such percentage.
II. 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 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 use of the PRIVATE ROADS, or to any other third parties
arising out of or in any way related to the use, repair, or maintenance of the
PRIVATE ROADS. N()thing 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 ROADS is intended to include review, inspection, or
acknowledgment ofa 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 therefore.
12. If in the CITY's sole judgment the PRIVATE ROAD is not being maintained to
standards set forth in paragraph 3 of the Agreement, the CITY may thereupon provide
written notice to the OWNERS to initiate repairs or construction within ninety (90)
days. Upon 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 PRIVATE ROAD to meet the standards set forth in
paragraph 3 and to then assess the costs thereof to the OWNERS. OWNERS shall
reimburse CITY for all reasonable costs incurred by the CITY in connection with
such maintenance activities. If the OWNERS do not so reimburse the CITY within
thirty (30)days after the CITY's demand, then CITY may pursue all of its remedies at
law or in equity
13 The foregoing covenants 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 tirne 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 of the signatory hereto that this instrument be recorded to the end and
intent that the obligations hereby created shall be and constitute a covenant running
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with the' hind 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. 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
17 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 settled by arbitration pursuant to
the Civil Code.
IN WITNESS THEREOF, the parties hereto have executed his Agreement on the dates
set forth hereinafter'
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Tax Rate Area: 17112 Date: '212.7/D7
Parcel Description: 14144 Sky Mountain Trail
OWNER: Ted R. Neher III f,.,?~
OWNER: Darlene H. Neher ift-Ifu; . ~~Z
Signature
Tax Rate Area: 17112 Date: 21z7/o7
Parcel Description: l4l47Sky Mountain Trail tJtf7~
OWNER: Gregg L. Brandalise - ,
OWNER: Tina L. Brandalise ~~:r~~
OWNER: Ted R. Neher III dt-tfyS)p'rure
OWNER: Darlene H. Neher
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Signature
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4,614 .~
Tax Rate Area: 17112 Date:'2/Z?A. 7
Parcel 'Description: 14135 Sky Mountain Trail
OWNER: Gregg L. Brandalise .
OWNER: Tina L. Brandalise
OWNER: Ted R. Neher III
OWNER: Darlene H. Neher .k~
Tax Rate Area: 17112 Date: Z./z.7/o?
Parcel Description: 14123 Sky Mountain Trail a~
OWNER: Gregg L. Brandalise
OWNER: Tina L. Brandalise +,;f~rJ~~
OWNER: Ted R. Neher III ~h-r
OWNER: Darlene H. Neher ~ Signature
Tax Rate Area: 17112 Date: 2./.27/o?
Parcel Description: 14 II I Sky Mountain Trail f3~J-
OWNER: Gregg L. Brandalise
OWNER: Tina L. Brandalise
OWNER: Ted R. Neher III V~;~'uH
OWNER: Darlene H. Neher g Signature --
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Tax Rate Area: 17112 ?l,~In/o~
Parcel Description: 14099 Sky Mountain Trail
OWNER: Gregg L. Brandalise rt<f(/
Signature
Tax Rate Area: l7U2 Date: } ;; "'-/01
Parcel Number 323-090-53
Buehler Tank
OWNER: City of Poway
Signature
(Notary Acknowledgement(s) Attached)
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CALIFORNIA 'ALL.PURPOSE ACKNOWLEDGMENT 619
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EXHIBIT A - LEGAL DESCRIPTION OF PROPERTY
Tax Assessor Parcel Number 323-090-53 (City owned Buehler Water Tank Parcel)
Tax Assessor Parcel. Lot I, of City of Poway Tract No. 04-02, according to Map
thereof No. 15407, filed August 9, 2006 as File No. 2006-
0567631 in the Office of the County Recorder of said
County of San Diego.
(14144 Sky Mountain Trail)
Tax Assessor Parcel. Lot 2, of City of Poway Tract No. 04-02, according to Map
thereof No. 15407, filed August 9, 2006 as File No. 2006-
0567631 in the Office of the County Recorder of said
County of San Diego.
(14147 Sky Mountain Trail)
Tax Assessor Parcel. Lot 3, of City of Poway Tract No. 04-02, according to Map
thereof No. 15407, filed August 9, 2006 as File No. 2006-
0567631 in the Office of the County Recorder of said
County of San Diego.
(14135 Sky Mountain Trail)
Tax Assessor Parcel. Lot 4, of City of Poway Tract No. 04-02, according to Map
thereof No. ] 5407, filed August 9, 2006 as File No. 2006-
0567631 in the Office of the County Recorder of said
County of San Diego.
(14123 Sky Mountain Trail)
Tax Assessor Parcel. Lot 5, of City of Po way Tract No. 04-02, according to Map
thereof No 15407, filed August 9,2006 as File No. 2006-
0567631 in the Office of the County Recorder of said
County of San Diego.
(14111 Sky Mountain Trail)
Tax Assessor Parcel. Lot 6, of City of Poway Tract No. 04-02, according to Map
thereof No. 15407, filed August 9, 2006 as File No. 2006-
0567631 in the Office of the County Recorder of said
County of San Diego.
(14099 Sky Mountain Trail)