Private Road Maintenance Agreement 2002-0509915
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JUN 17. 2002 ,
RECORDING REQUESTED BY. 12:12 PM,
CITY OF POWAY _ 'OFFICIALRECORDS'
SAN DIEGO COUNTY'RECORDER'S OFFICE I
WHEN RECORDED MAIL TO: GREGORV J:SMITH; CllUlITYRECORDER
... ' ms: 30.00. .
CIT]' <;LERK
CITY OF POWAY ;
P .0 BOX 789
POWAY CA 92074-07~9 - -
~ 'No Transfer. Tax Due
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t~ PRIVATE RaAD MAINTENANCE AGREEMENT
~ THIS AGREEMENT for the,maintenance,and repair of that certain private road, the legal
description and/or plat of which is'setforth in Exhibit "A" attached hereto and. made a part
Iieieof,is entered'.into between
JOAN K, BU.TZEN; LICENSED CLINICAL, SOCIAL WORK CORPORATION.,
A CA1IFORNI~:CORPORATION
(hereiluifterreferred.to'as "DEVELaPER;')and the CITYQF:POWA Y (hereinafter referred to as
"'GFrY")forthe,Oenefit of future subdivision lot owners'whowill use the private;.roadea:;ement
(hereinafter referred to as "LOT OWNERS", which,shallindude the DEVELOpER t() the extent
the DEVEL0PER retains any ownership interest in any lot,or lots).
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WHEREAS, this Agreement js.required as a condition of approval by the CITY ora - ' .
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subdivision project as defined in Section 21065 ofthe Public Resources Code; and, ~
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WHEREAS, DEVELaPER is the owner of certain real property being subdivided and
devel'oped,as TPM 98-06 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, iUs the mutuaLdesire of the parties hereto that said private road easement be
maintained in a safe and usable condition by the LaT OWNERS, and,
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WHEREAS, it is the,mutual desire of the parties hereto to establishamethod for the
maintenance and.repairof saictprivate'raad easement;and,for the apportionment of the expense:of
such.malntehance'and repair among':existihgand futute'LaT aWNERS, 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 Agreerrtent 'constitute a
covenant running with the land, binding upon each successive LaT awNER 0( all or any
portion of the property, NaW, THEREFaRE,
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98-0SA Drs~Pi
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IT IS HEREBY AGREED AS FOLLOWS
I The property benefited by this Agreement, and present and successive LOT
OWNERS of all or any portion of the property are expressly bound hereby for the benefit of the
land,
L The cost and expense of maintaining the private road easement shaJLbe divided
egually among the subdivided p.arcelscreated in the subdivision and paid by the LOT OWNER
or the heirs, ,aSsigns and successors in interest of each such owner
3, In.the event any ofthe herein described parcels of land are subdivided further, or
any additional parcel(s) not originally contemplated by this Agreementgairis access to said
private road easement, the LOT OwNERS, heirs, assigns and successors in interest of each such
newly created parcel or additional parcel shall be liable under this Agreement for their then pro
rata share of expenses and such pro rata shares of expenses shall be computed to reflect such
newly created or additional parcels.
4. The repairs and maintenance to be performed under this Agreement shall be limited
tothefollowihg,unless the consent for additional work is agreed to by a majority vote ofthe
LOT OWNERS owning 100% of the.ntimber of parcels, including subdivisions thereof and
additions thereto as,described in paragraph 3 above. Reasonable and normal road improvemeflt
maintenance work to adequately maintain said private road easement and related drainage
facilities to permit all weather and emergency vehicle access. Repairs and maintenance under this
Agreement shall include, but'is not limited to filling of chuckholes, repairing cracks, repairing ,
and resurfacing of roadbed, repairing and maintaining drainage structures, removing debris,
maintaining signs, markers, striping and lighting, ifany"and work reasonably necessary or proper
to repair and preserve the easement for all weather and emergency vehicle road purposes.
5 If there is a covenaht, agreement, or other obligation imposed as a condition of
subdivision approval to make private road improvements to the private road easement, the
obligationtorepair 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
6. Any extraordinary repair required to correct damage to said road easement that
results from action taken or contracted for by parties hereto or their successors in interest shall be
paid, for by"theiparty taking:actiotl oq~arty'contractih'g for work which caused'the necessity for
tlkextraordinaiy repair. The repair shall'be,suchas to restore the road easement to the condItion
existing prior to said damage.
7. It is agreed that DEVELOPER is initially the agent to contract and oversee and do
all acts necessary to accomplish the repairs and maintenance required arid/or authorized under
this Agreement. The parties further agree that the agent-may at any time be replaced at the
direction of a majority of the LOT OWNERS. Repair and maintenance work on the private road
easement shall be commenced when a majority of the LOT OWNERS agree in writing that such
work is needed, The agent shall obtain three bids from licenses contractors and shall accept the
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lowestofsaidthree bids and shall then initiate the \york. The agent shall be paid for all costs
incurred, including areasonable.compensation fortht: repair,andmaiIltenance cost; provided,
however,..that compensation. for theagenfs:service shall [n"no event exceed an amount equivalent
to IO%.ofthe actual cost of repairs, and maintenanwperfonned. Inperfonning his duties, the
agent; as he anticipated the need for funds, shall notifY the parties and each party shall within
farthcfive,(45) days pay the agent, who shall maintain a trustee account and also maintain
acclirate,accounting records which are to be available upon request, All such records shall be
retained by the agent for a period of five years.
8, Should any LOT OWNER fail to pay the pro rata share of costs and expenses as
provided in' this Agreement, then the agent or any LOT OWNER or OWNERS:shallbe;en}itl<;d
without further notice to institute a legal action for the collection on fundsadvancea on behalf of
such LOT OWNER in accordance with the provisions of California Civil Code Section 845, and
shallbe'entitle51 to recover in such action in addition to the funds advance, interest thereon at the
currentp[ime rate,of interest, until paid, all costs and disbursements of such action, including
such sum orsumsils the Court may fix:aS and for a reasonable attorney's fees.
9 Any liability of the LOT OWNERS for personal injury to the agent hereunder, or to
any. wOikeremployed to make repairs or provide maintenanwunder this Agreement, orto third
per~ons;;as weIi as any liability of the ,LOT OWNERS for damage to the property of agent, or any
,such wo'rKer; iir,ofariy third persons, asa result of or' arising out of repairs and maintenance
'under this' Agreement,. shall be borne; as between theLOT OWNERS in the same percentages as
:they, bear the costs':a.hd expenses of such repairs and maintenance, Each LOT OWNER shall be
responsible for ahd maintain his own insurance, if any By this Agreement, the parties do not
intend to provide for the sharing ofliability with respect to personal injury or property damage
other than that attributable to the repairs'and mainten'!llce undertaken unGer this Agreement.
Each of the LOT OWNERS agrees to indemnifY theathers from anyand all liability for the
injury to him or damage to his proPe!'lYwhen suchiIljury or damage results from, arises out of, or
is attributable to any maintenance or repairs undertaken pursuant to this Agreement.
10 LOTOWNERS shanjointlyand severally defend and indemnifY and hold hannless
CITY, AND CITY'S engineer"and;their consultants aIld each of their officials,directors,
officers, agents, and employees from ana against all liability, claims, damages, losses, expenses,
personal to the agent hereunder, or to any LOT OWNER, any contractor, any subcontractor, any
user of the road easement, or to any other thirdpersonsrarisingollt ofqr in any way related to the
use. of, repairoi:maiIltehant(j'of; octhe:failure:lo'repa.ir'or maintain-the private:foad easement.
'Nothing iri'the Agreement,thespecif('i;ationsor their contract documents or CITY'S
approval of the plans and specifications or)inspectionofthe work is intended to include a review,
inspection, acknowledgment ofa responsibility for any such matter, and CITY, CITY'S engineer,
and their consultants, and each of their, officia.ls, directors, officers, employees and agents, shall
have absolutely no responsibility or liability therefor
II Ifin the CITY'S sole judgment said private.road easement is not being maintained
to standards set forth in paragraph 4 ofthis Agreement, the CITY may thereupon provide written
notice to all LOT OWNERS to initiate repairs or construction within ninety (90) days, Upon
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failure to, demonstrate good faith:to make repairs or constru~tion'withinninety (90 days, the LOT
OWNERS agreeihai the CITY m.ay mal(e:all needed repairs.to said'road easement andJor
construct'said road easemenho'meettlie standards'set'forth,jn, paragraph 4 and to then access
costs to all hOT 'OWNERS proportionately. The,agentsi)all be responsible for collecting the
itssessmentsandensuring paymentto"iheCITY If the agent fails to collect the assessments for
ilriy'teason, the CITY may pursuethe'Temedy provided for LOT OWNERS in paragraph 8 hereof,
or any other,remedies at law-orin equity
12. If the CITY elects to make necessary repairs in accordance with paragraph II
ab()Ve" said work shall be without warranty Said repair shall be accepted "as is" by the LOT
OWNERS'without.,any warranty of workmanship and be guaranteed and indemnified by'them.in
accordance with paragraph 9
13 The foregoing covenants shall run with theland,and,shall be deemed to be for the
, benefitofthe hind of each ofthe LO;r"OWNERS and each and every person who shall atanytime
own all or any portion Mthe property referred to herein.
14. It is understood and agr.ee.d,thatthecovenantsherein contained shall be binding on
the.l1eirs,e'xeciJtors, administrators,. successors. and assigns'of each LOT OWNER,
15 It is the purpose of the signatbrs hereto that this Jnstrumentbe recorded to.the end
'!II1d,interit.that.theobligation 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 ofa
deed andJor conveyance regardless Of foim, 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 othenemedies provided in this Agreement and to all
other. remedies at law orin equity.
16. The terms of this Agreement may be amended in writing upon majority approval of
the LOTOWNERS and consent of the CITY
17. This Agreement shall be governed by theJaws of the State of California, In the
event that any of the provisions of this Agreemeht,are held to be unenforceable or invalid by any
court of competent jurisdict,i9P, the validity, and enforceab}lity ofthe-remaining provisions shall
110t be affecied)hereby
18. If the . Property constitutes'a "csolllmon Interest Development" as defined in
California Civil Code Section 1351 (c) wliichwill include membership in or ownership of an
"Association" as defined in California Civil Code Section 1351 (a), anything in this Agreement
to the contrary notwithstanding, the folloy/ing provisions .shall apply at and during such time as
(I) the Property is encumbered by a "Declaration" (as defined in California Civil Code Section
1351 (h), and (ii) the Common Area of the property (including the private road easement) is
managed and controlled by an Association.
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,(a) The Association, through its Board of Din,ctors; shallrepairancimaintain the
private road eaSement and shall be, deemed the "ageIltl'aS:feferred to,in paI'agraph T above. The
AssoCiation, which.shall not be replaced e:xcept;by'ameridmentto the Declaration, shall receive
no cotripensationfor performing such'du!ies. The:costS of such maintenance and repair shall be
aSsessed against each owner and his subdivisioniriterest,in the Property pursuant to the
Declaration. The assessments shal!be.deposited inthe Associations corporate account.
(b) The provisions in,tI1eDeclaration which provide for assessment liens in favor of the
Associati<mand,enforcement thereof shall supersede paragraph 8 of this Agreement in its
eritirety.iNo!individual owner shall have the right to alter, maintain, or repair any of the common
Areii' (as,defin:ed in California Civil Code Section 1351 (b) in the Property exceptas'may be
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allowed by the Declaration.
(c). This Agreement shal!.notbe interpreted in any manner which reduces or limits the
Association's,rightsand duties putsuarittO"its Bylaws and ihe Declaration.
IN WITNESS WHEREOF, the parties'have executed this Agreement on the dates set forth
hereinafter:
TaX:Assessors Nwnber 321-41O~39 Date au,,_ 07,) ';;00/
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Owners LICENSiD CLINICAL SOCIAL WORK ,CORPORATIO /: / -
~M~ . re ~. T
Type or Print Signature
(Notary Acknowledgment attached) (Each owner shown on Grant Deed must sign)
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ACCEPTED'
qTYQ,f POWAXC
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Date 3-zc-ZJ<--
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EXHIBIT "A"
That portion of Lot 6 (The Northwest Quarter of the Southwest Quarter) of Section 6, Township
14 South, Range I West, San Bernardino Meridian, in the City of Po way, County of San Diego,
State ofCalifomia, according to Official Plat thereof described as follows:
Beginning at tne Southwest comer of said Lot 6, thence South 88045'0 I" East along the
Southerly line of said Lot a distance of351.34 feet; thence North 1001 '03" West, 308.75 feet;
thence North 88016'00" West, 35146 feet to the Westerly line of said Lot 6; thence South
1001 '00" East along saId Westerly line 311 72 feet to the Point of Beginning,
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EXlllBIT "B" 005047
The Westerly 4000 feet of that portion of Lot 6 (The Northwest Quarter of the Southwest
Quarter) of Section 6, Township] 4 South, Range 1 West, San Bernardino Meridian, in the City
ofPoway, County of San Diego, State of California, according to Official Plat thereof described
ascfoliows:
Beginning at the Southwest comer of said Lot 6; thence South 88045'01" East along the
Southerly line of said Lot a distance of351.34 feet; thence North 1001 '03" West, 308.75 feet;
thence North 880'16'00" West, 351.46 feet to the Westerly line of said Lot 6; thence South
1 001"00" East along said Westerly line 311 72 feet to the Point of Beginning,
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.STATE qFCALlFOR~A 0 \ }ss
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COUNTY OF . c;".."., l~
On ~~.~- Ol , before. me, \-\ Q' "J. t~CA~~l~\-l
~ k. R\A\-' .et/\
personally appeared , ) 00. V\
, personally kngwn to m@
- -(orprovea t6 me onthe basis ef$~a:tisfactoryevidence)-to-be-the'pe,.son(5)-who5ename(s) ~re-
subscribed to the within ir:lstrumentand acknowledged to me that he~they executed the same
ill his9heir authorized capacity{ies), and that by his/her/their signature(s) on the instrument the
person(s) or the entity upon behalf of which the person(s) acted, executed the iostrument.
Signature
t:~'o';;w'H:~16'1' F'RA'N~FURTH '1
- .'i''ft:J\ COMM. # 1164619 -
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" L ";,,,...' 1.\1 Cr;r::rn. Et;wes Dee:? ~?01.J
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(This area tor official notanal seal)
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Title of Document '\ (' \.\JQ. ...e..
Date of Document 1l-"),-') - 0\ No. of Pages 7 - ~ J-AJA-e,J
Other signatures not acknowledged lj)i\
3008 (1/94) (General)