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Road Construction and Maintenance Agreement 1990-039256 ,- ~ , , ! "'0:;- " ~.:. [-;c'~" .,. 4 'L . " ,,, -' , .. 630 ,", ;. ) ) ) ) 2~15 ) ) ) ) ) ) ) ) Recording requested by CITY OF POWAY A'fter'recording return to: CITY CLERK CITY OF Po\.JAY P.O. BOX 789 Po\.JAY, CA 92IY64 Bt:ING :RE'-RE:C0RDED TO CORRECT lEGAL DESCRIPIION:' ,- -,"" ..- -. - -..... -_.~ - -- -. ,> ,/" . I"EXHlBltA'iM~DADD.!'6:XHiBfJ "B'II . 4.- -' .__ ...j, ;y~ "_ - " r~c, 1- '.S'I-z,'.9.,5(j, 9 0 ",' . '/'1'5,6 ,"j, .j.........' "'L":," ;" v ,{ f--- . ----"-"~.-~ I \itff1i;~(f(})~~;~)r:PE" '1 , 90 JAW: 23Pn 2:08 VCF.; l~ L., LYLJ: , I t:U.,~TY ~;:f!'ryRfJj:-t~ :1 ~.",L_-'::' v.. ,....-, . -~~ " For recorder's use only I./:J-- 3/ ~o ~RF.. AR . MG ' ROAD CON~;TRUCTION AND ~iAINTENANr:E AGREEMENT I The purpose of this Agreement is to pruvjde adequat.e roadways wlth,i_n the City of Poway and maintenance of same. This Agreement is executed by the parties her,ein ~~ 6 condition of ~pproval by the City of Powa~, taB dev~lopment project as defined in SeCtion 21065 of the Public Resources C?de and will run with"the ,land in perpetuity as a covenant. upon the property des-ciibed' herein. The standard for improvement will be that standard set forth by the Poway City Council. If no standard is specifically set forth by ssid Council as a condition of approval, of the project, saidstandar;;d ,!:L11 be those set, fOFth by the regulatory or dinan- cesof the 'City of Poway. The construction described herein shall be accomplished prior 'to final approval of the project herein by the City of Poway. \.JHEREFORE, the undersi.gned 'lgree as [ol.l.ows: 1.., PARTiES AND, PROI'ER'J'i. The pan i cs Ilereto arc those pFoJlerty owners who 'hlive,"c)(eclI'tcr!, ;t~hJ.B ^gI'c'diI0"ll-L' .'111](1 LII~~tr il(~i rs, (~x(XIII.~)rS, (](11ll:L11':istrut:nrs, [1:38:i,gI18. and, \successors' i.n int.erest, 'upon all Of v:hom tlh.:3 Agreement shall be bind,i,ng. The City of Poway shall not be deemed a party hereto, hut shall be deemed a ,beneficiary. The realty he':1d 'by each party is identjcfied 'by tax parcel number 'adjacent to the Signature, ,,('saj d party. The legal description of the parcel ;upon ~'hich" ~the project :r~' ~}~jcated is sel fort;h ~n ~.~hip:i;t "A", attached hereto and incorporated herein. The status of property Eor'"l1putposes, ('i.'e'.., }im~ proved" unimpl<oved, etc.) shr:l':Ll be determined CIS G.f ;the fi rst Monday in March of each year. 2. ROAD. 1,'he r:oa,dway, ",h"lJ he, that road"ay established by the City of Powav' astlje roas!wE!Y ,hest suit,ed ,to provide acc.eso for the City emergency, \fehjcles ansi/or. City p,r()jects (w"ter, sewer, etc.,), The locabonof said road,.,ray' ,-?hW1J- be witbin the seLle d.i.'::>~re't:~.C?r~_ ot l-h~_ Ci~y.. Qf PO\V<JY as: ,8 con'- di't-'i'on "dE 'sp'rf.oviJl ;.0 f the. d(~v_s-d.<?pm6ri ~'. Pf0.-n~c;:_t-;:~ Th~' 'c19S.CT:i'P t-;'on 0 f the road which is the slibjccl of th:L; Agi:;CCIllClll: .is <1l:UlchcCl hcrcl:u as "Exh:illj,l: "13", on map shown as "Easement", and made a part hereoi. '3. ,CONSTRUCTION AND ,ROUT,INE':MATNTENANCE. The cost of construct,ion, cap:ital, imj5i6\fE",jen(S' anil/6i Toptj'I1Ei:'in~in,tenanc,e T~sulting f.r()m'ordinar.y ;"ear " ana teaT ,~hidlbeboi'rie by. thepal'ties iri accol'diinc'e' ,wi th the following formula: ,'" " i . .i 2216 E x,h i bit " A " Pa~cel~ 2, 3, & 4 of Pa~cel Map 14596, Poway, CA Known a~ 17033, 17041, & 17049 Coyote Court~ Faway, CA . . 2217 Exhibit "B" Parcel A: The Northerly 40.00 feet of Parcel 4 of Parcel Map No. 14596 in the city of Poway, County of San Diego, State of California, recorded in the office of the Recorder of San Diego County on December 24, 1986 in Book of Parcel Maps at page 14596 as File No. 86-609206. Excepting therefrom that portion of said Northerly 40.00 feet defined as delineated on said Parcel Map No. 14596 as "Old Espola Roadll . . . 2218 Parcel B: The Northerly 40.00 feet of Parcel 3 of Parcel Map No. 14596 in the City of Poway, County of San Diego, State of California, recorded in the office of the Recorder of San Diego County on December 24, 1986 in Book of Parcel Maps at page 14596 as File No. 86-609206. Together with that portion Q,f said Parcel 3 No. 14596 being more particularly describec of said. Parcel Man as follm-is: COITlne71cing o.t. t..""1e l'Jort.hea.3t CLlrner of 52i:1 E3.rcel 3; thE:;tL_:=:, South 1011'5411 \'.jest along the Easterly line thereof 52.46 feet t:, the intersection with the arc of a tangent 41.00 foot ra~ius curve conca\Te Northerly a radius to said point of intersection bears North 36022! 4011 V.Je,st, s aid point 0 f intersection being the True Point of Beginning; thence, Southerly and Wester'l~ along the arc cf said cur"\Te through a central angle of 82053'5111 a distar1ce of 59 J2 feet to the beginning of a tangent 30.00 foot radius reversing curve conC2"2 Southerl], 2 radial to sairi. point bears North 460Jl'11J1 EC'..sti thence, Northerly and ~\jesterly alcDS the arc of sai~ curve through a central angle of 45013'591' a distance of 23.68 feet to the point of tangency with a line being 40 00 feet Southerly of, at right angles to the Northerly line of said Parcel 3; thence; South 88042'4811 East along said line 75.44 feet to the TPUE FOINT or BEGINNING. Parcel c: A portion of Parcel 2 of Parcel Map No 14596 in the eit1 of Poway, County of San Diego, St~t~ of California, recorded in the office of the Recorder of S2.n D~ego county 00. December 24, 1.986 in Bock of F2rcel Ha~s 2t rage 14596 as FilE No. 86-609206 bE;-in'~ mare particularly desrribed as follows Beginning at the Northwest corner of said Parcel 2 of s3id Pa~2el M~p No 14596, tt~rce; South lC~1'541' West along the Westerly line thereof 52.4b feet to the intersection with the arc of a ta.ngent 41.UO foot radius cur.ve concave WesterlYr a r~di 1 to said point of inb~.c~ection beaTS North 36022 401! v'Jest., i=.clPnce:i Northe2sterJy an~ Northerly along the arc of s~id cu~~e through a cRntr~]. anglE of 310J1'5511 a distance of 58.34 f~2t. to the intersecLion with the tiortherlj line of sai.d Parcel ~ a r3dial to said point of int..t:'rsection bears No:cth 62005'25" East, t.llenc2i North 3.804214811 We3t along said Northerly line 10 82 feet to ttle P8int of Beginnins . . 2219 PaJ::ce 1 D: A portion of Parcel 1 at Parcel Map ~o. 14596 in the City of PO'day, County of S3.n. Dieso, St2te of California recorded in the office of t~~e Recorder of 52.;1 Diego County on Decemher 24, 198f i_TI Book of Parcel Maps at page 14596 as File No. E6-609206 being more parti=ularJy described as follows: CurrL:.:~encins at the Soutbe2.st co:.:ner of said Parcell of s2id P2.reel I"i2.? [-;0. 14596, t~'Lence; Nc::th SSC~2'481' vle~t 3.10::'<; the. SouthE~rly line thereof 113 5.J feet to the True Foint of Eeginni~~ bei~q al~8 the intersecti~~ ~:itn a ta~;CJ1t 4l OC feet rajiu~ cur'7e ccrcave SOl1tE\....esterly, 2. r2c.ial to said point of intersecti:J::' beays Nr)rth 6200:' I 2:11 E2St, thence; No:ctnerly 2T:.d ~'ester11 along the 2rc of said cUr~Je through a central angle cf 10680211211 rl dista!lCe of 75.83 feet to the Begi~ning of a reJersirg 30.00 foot radius curve, co~cave Northwesterl~, the~ce; Souther1! and Westerly alon} the arc of said curve through a cerlt~al angle of 4501315911 2- c.ista.nce of 23.68 feet, to the irtersection with s2id Southerly line of said P2rcel 1, thence; SOl~th 8~c42143" East along 52i5 southerly line 86.20 feet to the True Po'int of Beginning. Fc.:::-cel E: F___11 cf Gid Espola Foa::: as Sh0;,~'Tl on P2.reel Nap no. 145?6 l~ t:.i1e Cit1 of P8~ay, Count] of San Diego, State of Californi2, recor~ed in the ofrlce or the Pecc-x:der of Sar: Diego County on [:ecem~,-o.r 2~, 1926 i_n E8Gk of Far~el M2~S at F3ge 1~596 as File No. 86-GCg20E lyi~"; Easterly 2n~ S.:Juthe~ly of t~le ~';est.erly 2nd Ncrt:herly line ()f r;aLcel d of ~3id P2r:el M~~ No 1~~96. _-,~_-c;-c::.,..,? Lh~ret':",rn c.~i:" porticn 0: s:::.'i:5. Old Espn1a Fcac~ l~ -l:n~ Scutl-,::rl, cf t~~e SOu~~rl~r -~~ Li..:l2 C~ s:=..ld Pa:cC'eJ 4 of sa.i2 F2_rc,::~.i Ha~' [-,:1 1 -4 S ri 6 . '. . . 2220 3. a. A priv,ate road not provid'ing, 'access to public roads in both direc.tions is analagous to any road terminating in a cu-l-d:e~sac. Given such' circumsances, all, parties tr.Elv~r.sing any portion of the prtvate road shall bear. eqii'irtly in t:he 'cost of any cons,tr,ucion, maintenance and i'mpr,ovement of the roads as described in exhibits" ,A " and" B " of th,is Agreement. b. The formula for calculating the cos't, of any constr.uction, nfain,tenance Or impr.overit is apportioned as 33 1/3 % each ,based ,oil the three ,par,cels as described, in exhibits" ,A " and" B " of this Agreement. 4. EXTRAORDINARY n~m~ge: It shall be the obligation of each pa,rty "heret,o:, .t-oma'ke and pay for all repairs to road , and to all r.elated struc,tures (;dr.ains, gutters" fences, etc.) 'when same have been damaged by the extra ord,inary use of such party or his age,n,ts or em,ployees. Exampl>es of extraordinary use are damage caused by heavy equipment ( 1 ton or over. ) such as might lie' caused during construction,. Ordinary use of said road w4-llbe for passenger use and vehicles or use by tr.ucks 3/4 ton or less. Or.dinar.y use shall be that grad- ual and over. a per.iod' wear.,ing caused by normal wear and tear. Ektraordinar.y uSe i~ causing immediate damage with any vehicle or any damage caused by a vehicle not defined within or.dinar.y use traffic. 5. Initiation and Management of Repairs: a. Any sys,tem tor. ,'acnlevement ot repai'rs and payment of costs whi'ch, i'n the year, in question, is agr.eeable to the majority of p~rtiesishall be the system uti~ti~d. Tbe majority will be any two of the three par.ties o~riing land as described in exhibits II A " aDd fI B ". b. The Majority ,may initiate and manage a ,program of r.oad maintenance, or related maintenance, such a~ gutter.s, etc. The time and effort ex,pended by par.tieshereto in such man- agement shall not ,be compensated. AIL other costs i'ncurred s'hall be shared' in accordance with the above formula. c. Achievement of the majority consensus respecting maint- enance shall be evidenced by a wr.itten statement, s4gned by parties pu'rpo['~i'l1g to. constitute s,u"h rep;re,sentation. A copy sh",I'1 be sent to the'a.dd're's~' o'f each. 'party, as, 'shown 'on 'the, latest tax"s;;'e~:sor' s r,oll, ait .lea.st t,wo we:~k':s prior to' ,the' commencement of ahy wo-rk ocr the incutri'lig bf ~n;'Y- 'maint-eJi'a-hc'e .C'DSts,. ." , . . 2221 6. l\l:MINIS<NII.TION OF cosTs. The property owner or owners initiating repaiI's 9r caf)ital 'improvements shall .ee in, "harge of making the payments required for the work of irrq:>roverrent. It shall "be incumbent upon all property oWners t.o contribute to the generaL fUndt.o be used for maintenance or capital ,improvanent in accordance with the point. ci::rnl?utations referenced ahove.l>.fter t.he actUal expenditure of, foods by any owrie'r or group of owners such parties shall ,1:Je ent.i.tled to 'as(>essalI other parties to this l\greement in accordance, with the formula set forth above. Said assessment notice shall clearly specify the expenditures, the piirJ;:ose 'for same,H arid the methcx:!' of calculation. Upon rec!,!ipt of any such notice of af!sessment, the ass~(>ed 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. emission 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 asse~sment shall have become final, it shall be'due within 20 days of that dat.e. It shall be an obtIgation collectible by law through all legal pro- ceSs. 7., ARBITRATION. Any dispute arrong any of the parties to this l\greement respecting the interpretation of the l\greement or the 'application of any,ot its teims or the action taken by ,any party in accordance therewith, shall be settled by arbitration pursuant to the:Civil Code. 8. FIND:rn8. The City of PCMaY finds that failure to maintain private road, to standards pr~ribed .9Y law adversely impacts upon the health, safety and welfare of, all residents thereof. The City further finds that inadequately main- tained 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 !las not been maintained to specifications set forth pursuant to City Ordinances or other stan,~ds applicable to this l\greement, the City will thereupon, provide written notice to all parties to this l\greement to initiate repairs or,construct.ion within t.hirty (30) days. Should said parties fail to demqnstrate good faith to make repairs or construction at the expiration of the thirty (30) days the City is further E!!1pbwered by this l\greement" to make all needed repciirs to said road and/or construct said road to meet current' City' st.aJ;ldards then established by 'the Pdway City council as ,standards fortheherein-described "oadi an? to then asse,ss costs to all property OWners to this l\gr"eeirent. - Such asseSsment will I:ie establiShed in conforn>ance with the point system contained herein. '. b. l\nyproperty owner failing to ,make~yment., 'to the City for costs inCur'red pw::suant to Section (,0 withih sixty (60) days of. reCeipt, of a billing" frcm the City shan be deerrect -in uateria.I ,breach' oithe ag'reement. The City'shall thereupon'be ,entitled tocarrilehce ;1iti:gation in any court of' canpetent jurisdiction for the recovery 6fall <if said costs. In the event of such litigation, the City shall be further entitled ):0 the recovery of its attorney fees and legal costs reaso- 'nably incurred therein. ,./ (U!84) . :t. . . c. Propertyowner(sl shall inaemnlfy and hold harmless City, Cit~~22 Engineer,;, and their consultants,ano each of their officials, directors, officers, agents and employees from and against all liability, claims, daiTages,' losses, expenses, anci,oth~ costs, inc'luding costs of defense ahdatt()rney's fees, arising oiit'6f or resulting fran or in connection with the perfonnance of the work, both on ahd 6ff the job-site, and during and after c'Cm,pletion, provided that any of the foregoing: n 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 ailployed by any of them, or anyone for whose acts or omissions any of them, may be liable. Nothing in the P.greement, the specifications or other' contract documents or city's approval of the plans and specification acknowledgment of a respon- sibility for any such ,matter, and City, City's Engineer, and their con- ,siiltants, and each .if their officials, directors" officers, employees anir:ag~ts, shali have absolutely no responsibility or liability there- for. 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 own~s without any warranty of Workmanship. Said' repair shall be guarantee<! aI)d i!:ldemnified by property 'owner ,in accordance with sub- paragraph, (c). 9. C0VENP.NT ~UNNING WITH IAND. This p.greement shall be deened and is .intended to run with the land and be, a restriction upon said property, shall be binding 'upon and inure to the beriefit of the undersigned, hiS/her/their heirs, personal representatives', successors and assigns, forever or until such time as the said pd vate road shall be dedicated to arid a=epted for use asa public street or .tDoroughfa~e ,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 res't,ri..Ck,ion' upon and shall be se;ured by the said property ahdany, :subSequenttransferee'thereof, bya=eptanc~ of. delivery OE a~gn9t9r conveyance of the said' property shall be deemed. to have consented to and I::lecarE bound by these presents, including without limitation, the right of any person entitled to enforce the tenns, 'of this lI.greement to enforce the r~triction therei~ creat.e(I,such remedY f:o be!CUIn\llative and in addition to all other rare- dies at ,law ()r 'in- equity. ll.. StJBS'Ei;)uENr usERs. In, the event that a party (parcel) 110tqrig:il1ally contanplatedby 'this 'l\grearent: gains" access.tp said private road, that party (parcell shall be required to sUbscribe to this Agreement. Should any parcel contemplated by this Agreement be split into multiple parcels (two or rrore) each newly cr~te4,pap;:e.l shall thereupon be .oblJged'underj:hisl\grearent and incur its r:ortj.on of mainteIlance; costs as set forth by the poin!;system h~e!n. ( 11/84) ,/ '~iy-, I_~.. 'I' ".J.. '." ~; . ~J' \~, I " , ,\.~" (' 1 ~, J ') '. . IN WITNESS WHEREOF, the parties hereto have executed this , .. Agreement on the dates set forth hereinafter: Tax Assessors Number 273-820-21, 22, . . OW~ERS P.J. SCHMIT DEVELOPMENT, INC. Type or Print Type or Print Signature -~ (Notary Acknowledgmen~ attached) (Each owner shown on Grant Deed must sign) . ACCEPTED: CITY OF POWAY by~ b(k;;;l~ Aproved as to form: ~~ Ci y Attorney , . (11/84) Page 7 of 7 2223 ; '.: << . . CAT NO..NN00737 TO 1945 CA (8-84) (C~rporation) } SS, i STATE OF CALIF9RNIA II - _ COUNTY OF ,,4/1/7) MdtffO On - I. 'Said State, persona Iy appeared personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the (1 ,/,).{,f)/J-(o t:L~ President, and ' personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the - Secretary of the Corporation that executed ,the within instrument and acknowledged to me that such corporation executed the within instruw men! pursuant to its by-laws or a resolution of its board of directors. WITNESS my hand and official seaL go TICOR TITLE INSURANCE before me, the undersigned, a Notary Public In and for -6 w ~ .. x .. ~ ~ ~ ~ t~' . Signature _ OFFICIAL SEAL . ANDREA B. MATRANGA : NOTARY PUBUC - CAtFOIlNIA SAN DIEGO COUl11Y , ." MyComm.ExoiresOee,25,1993 (This area for official notarial seal) , .r. . ,;~ .; DON HIGGTh,TSON, Mayor ]A,'1 GOLDS~IITH. Dq>UIY Mayor LI!:{DA. B~'JNON. COUncilrnember BOB EMERY, Councilmember CARL R. KRUSE, Councilmember 4L:ITY OF POW ~ TO: FROM: County Recorder P.O. Box 1750 San Diego, CA 92112 poway City Clerk DATE: SUBJ ECT: May 23, 1990 Road Construction and Maintenance Agreement - Re-record P.J. Scbmit Development, Inc. * * * ** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Please record the enclosed origi.nal of the above referenced document and return it to the City Clerk's Office. This document was originally recorded as 90-039256 and is bei.ng re-recorded to correct the legal description on Page 2 and to add "Exhibit B." Enclosed are two checks which amount to $23 for the recording fee. Please return a conformed copy in the enclosed self-addressed envelope. Thank you, ~on~~ Administrative Secretary For Marjorie K. Wahlsten City Cl erk /ml Enclosure cc: Engineering Services Department/Barbara City Hall Located at 13325 Civic Center Drive Mailing Address: POBox 789, Poway, California 92064 . (619) 748,6600. (619) 695-1400 CITY OF POWAY ) ) ) ) ) ) ) ) ) ) ) ) ) ) 90 O?"Z)b . r........u ;"- ~.. ; ~i)~ .~ J ~!rf'~ i.L f<! ~!.:f ~ );: . :_: .!~ ~,--,-< , ::-:- " ~ . 6JO ..--' Recording requested by '/,}t::. 00 I':"'? 3 "rM 2: 00 J ""I.;. <- After recording return to: 'l[:;~'" L l YLE CD:.<"-!~TY !J~o~t)E3_j CITY CLERK CITY OF PO\vAY P.O. BOX 789 POlvA Y, CA 92064 BEING RE-RECORDED TO CORRECT LEGAL DESCRIPTION "EXHIBIT A" mD ADD ',[)(HIBIT B" For recorder's use only qpH' @j:j ROAD CON~;TRUCTION ,AND MAINTENANCE AGREEMENT The purpose of this AgreemenL is Lo provide adequaLe roadways wi thin 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 ordinan- ces 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. IVHEREFORE, the undersigned Jgree as l:o.l.1.O\,s: 1. PARTIES AND PROPERTY. The pan ies hereto arc those properLy owners who Mave execul:ed thi.s ^grecl1l<..'IIL nlld tlle,ir Ilc.irs, {'XeclIl:ors, ndlllil1islrnl'ors, n.ssjgJ1s, and successors in interest, upon all of ,'hom thi:, 'Agreement shall be bind,ing. The City of Poway shall not be deemed a party hereto, but shall be deemed a beneficiary. The realty h,,1d by each party is identified by tax parcel number adjacent to the signature 9[ said party. The legal description of the parcel upon which the project lS located is set forth in Exhibit "A", attached hereto and incorporated herein. The status of property for all purposes (i.e., im- proved, unimproved, etc.) shall be determined as Gf 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 discreLion of th~ City of Poway as a con- dition of approval o[ the development project. Th" description of the road which is the subject of thJs Agreelllellt ,j S <1l.:Lacllcd hereto ~lS "Exh:i bit "13", on map shown as "EasementU, and made a part hereof. 3. CONSTRUCTION AND ROUTINE MAINTENANCE. The cost of construction, capital improvements and/or routine maintenance resulting f.rom ordinary wear and tear shall be borne by the parties in accordance with the following formula: . ,~ CITY OF POW A Y DON IDGGINSON, Mayor IAN GOLDSMITH, Deputy Mayor LINDA B~~ON. Councilmember BOB E.t\1ERY, Councilmember CARL R. KRUSE, Councilmember May 23, 1990 Glenn Graves, Account Executive South Coast Titl~ Company 2667 Camino Del Rio South, Suite 1D7 San Diego, CA 92108 Dear Mr. Graves: Enclosed please find your cbeck in the amount of $21.00 that you left witb me for the recording of the Ro~d Construction and Maintenance Agreement for P.J. Schmit Development, Inc. W, have finally gotten "Exhibit B" of that agreement, and P.J. Schmit bas submitted a check for payment of the re-recording; there- fore, 1 am returning your'~betk. Thank you for your belp, I really appreciated you trying to get this matter corrected. Stncerel,y, ~C5fJ~ Mari e Lofton Administrative Secretary For Marjorie K. Wahlsten City Cl erk Enclosure City Hall Located at 13325 Civic Center Drive Mailing Address: POBox 789, Poway, California 92064 . (619) 748'6600, (619) 695,1400 - . . 'l)~""'W'''''''''''~''~W'-~~~~~'''..l~)'',:l~~~';;Jor'-M'''1-\.l~.-tY'r~..r.;'(;~wJ,w.~-'~'''~~ ..l/f'i:;'IV''''~'' I"r~~J1...~.i..':'y~,~\..~.(;.."""""""'.""'-:~""'_ ;',-";,\i'f" ''': ~Jl,l I" ~> . , , MEMC)RAN,Dt~;(vI' v TO.: st~_ &1.,5. FRo.M: ~o~ I~O StJBJECT:'Rocd J--'klV\~0AGi1'\C\J, Ac,\E{),yw?v.J DATE: .5/I7I~o ~/ ~~- d-1!-~o~ vkCl.L) ~dQci ,,1:0 ccdcp.-l Co dLU~"Q,.,v\ (c~c'''' '\ Cll.V\ ~"'ch';'d ') --R C-" ""II,V",- J.O'\ r::J."h<:.rLk~(? c.",,-;A'f ~, .'C'-i>",ll $d:L\).Q(!A'\. . 't)1I ,,-- \ ~--ti...Q,~..Q..., PC\v1:I.\.',c '\ ? J'.-.Q,r=e- '-"t.IA'<..("0' ell " . .cc.... c^'^ A nn~,n_ 1- ' ., II... ..l .. / / I L,I '-"""C0.P0\6~'lQd ~ ,!)j"",do,'\cl .101.1",.\\.< \n., },G.f'\ ,GcOv--- 'AD-^,,-,ou,-,,(~l Cfuc:! ~\c\.wu-J LlI<J.Jft/ "p JCc...L..!.A. . ' , / /?,L- v/ I / i.<-- 7(./#' ",LU ~'7-".,._f! o /Lo~_;g,-;--- [/ . ~ '744 ~ ~- .-t.o..- ~ ~ ~ - " , ~. , 692 . a. ~private road not providing access to public ,roads in both directions is ill1alogous to any road terminating in a, cul-de-sac. Under such con- ditions, 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 those 'property owners can- monly traversing a portion of the private road shall be made to bear the cost of maintaining that portion of the road. Therefore, construc- tion, improvement and maintenance costs of portions of the road Used only by certain persons, because situated further fran the road entrance and beyond the property perimeters or boundaries of other par'" ties, shall be borne only by those parties. b. Construction improvement and/or maintenance of the road by all parties who use the road in ,c<mron shall be a.llocated in accordance with the following point system: (1) Each party autanatically is allocated 10 points by virtue df ownership of any size of undeveloped' land to which access is pro- vided by ttie 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 shali be allocated. (3) For a residential structure or reereational 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." ~ manager's or foranan's residence shall be deemed a "residential structure"). (4) For a residential structure which is used more than 30 percent of the time, 40 additional points shall be allocated. (5) For any vehicle 1 ton or over, registered to the a.mer of any par- cel and used by same over any por,tion of said road for any period of time, 5 points. c. Example 1 of thefonnula: l\ssumethat the road fran starting point to owner A I S' farthest boundary of land fran said starting point is 65 per- cent of its length; fran there to B and C's farthest bo1.lOdary is 35 ,percent of its length; fran that point, the epd of the road, D's pro- perty begins. ~ 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 question in $10,000; repair of the gate is $2,000. B 40 ac I D ~Ol>J) 10 ac I ~ 20 ac r c 20 ac (11/84) Page 2 of 7 ~ r , 693-' Solution tb'Example: (see graph} Co."t, Oftbe gate and 65 percent of the road is shared by ail. Thirty-five percent, of 'the ,road 'cost" is ,shared only by 'B,'C, and' D. Ratio of sharing is, determined ,by the following pClint of allocation: Owner llil I\.cres I\. 10 ,20 B 10 40 C 10 20 D 10 10 Grove Res TOtals 20 40 30 50 9'0 20 Total Points 190 As to $8,500 of the cost: (65 'percent of road, and 'gate) I\. pays 3 Q/l9.OJhs 9r $ 1342.10 B pays 50/190ths, or $ 223~.84 C pays 90j190ths or $ 4026.31 D pays 20/190ths or $ 894,75 1\5 to $3,500 additional cost: (JS'percent of road) B pays 50j160ths or $ 1094.00 Cpays 90/160ths or $ 1969,20 ~:f ~ D pays 2()/160ths or $ 437.60 ~.':.; ;' , . d. Example 2 of the fonnula: l\ssume the road is a, through road. That is, it.may be traversed iilboth directions by-any abutting p,t"operty own~. 'i\ssume the SaIl!€! status of the property for pOint purpbsed 'as in Example 1. B '40 ac D 10 ac ~AD .I' 1\ '20 ac , C 20,ac (IlI84\) Page 3 of 7 , -, 694 Solution toEXaiilple: (-see graph) Owner, iUl I\cres Grove Res Totals - 1\' 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: 1\ pays 30/190ths B pays 50/190ths co: pays~~9/1-20ths D'pays 20/190ths or or or or $ ,1894.73 :$ 3158.00 $ 5684.40 $ 1263.20, 4. EXTRAORDIN1',RY DI\MI\GE:. It shall be, the' obHgation, of each party hereto to make and pay for iil:1, repairs toroaq" and to all related struCtures (drains, gutt:er!"gates, fences, ,etc. ) when the, !lame have been damaged by the extra oJ::('linary use of ,suchp:lrty or his ageIJts or, .employees. Examples of extraordinary use are darreg'e caused by tractor type 'vehicles and damage caused by heavyequipnent (I ton or, over) such as mlght 'be Used during construction of a resideng~. Ordinary ~e ot 'S!lid r~d will be for passenger vehicles and light truck 0/4 ton or less,) traffic~Ordinarywearandtear or, ordinary use shall be that gradual and over il perlcxJ. wearing caUE;ed,by s,u.ch ordinary use. Extra- ordiriary use 1's cauSih(}irrriiediate <'laiiiage with any ,'vehicle or any damage caused by a vehicle not defined'within ordinary use traffic. 5 . INITI1',TION l\ND MANIIG1'MENT OF REPI\~S. a. I\ny system for achieverent of repa1'rs and 'payment of costs which, in the year ih question, is agreeable 'to the mci'jority of parties, shall be the system utilized. ' b. "Majority" is any group of landowners holding 51 ~centor :rrore of the '~p()ints;i a,Sj calcula'ted in paragraph ~3. '1'hey may initia,te <jridinapa,ge a, program ,of road maintenance, or, maintenance ,and repair of related' ,faci- lihes;sueh asgutter:,s, gates, ete. ' The tLne,and clfort~ded,by parties heretO iri such 'rnahagemert' !:lhaH. not be ,ccmpensa,ted. '1.11 other costs in=red shall be shared in accordance with the above formula. c. I\chieverentofthe minirmnn 51 percent'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. j:othe address of each 'party, as shQWl1 on the latest: tax assessor's roll, at ,least tl<<) weeks prior to the cc:i1tralcerent of any work or the incurring of any maintenance costs. (1+184) Page, 4 of 7 ~~ " , 69[5' 6. l\CMINIS'rnJI.TI0N, OF ,COSTS. Thepropeity Owner or owners initiating repaIrs or capital irnprovellel1ts shaH be' in charge' of rnakingthe payments required f9r the work :of :irnpibvenent. It:: shall be inCumbent upbn all 'property owners to contributet'.o the general fund to be used forrriaintenance or capital irnprovellerit, ih ~ccordance--;"ith 'tile pbint cetrputations referenced above. ~ter the 'actual ,expenditure of fundS by any ~<=r 'or group of owners sUch parties shall ,be entitled to assess all other parties ,to this l\greement in ~ccor4ance with the fortnUla set faith aoove. Said ass~ssn'ent notice' shall clearly spec:i~y tneexpenditures, the pUrpose for same, ,and the method of calculatiol1. ' UjJ9n receipt of any such notice of 'assessment, the assessed property owner shall have tell days in wh.~chto dispul;ethe ass~ssrnent,. Failure to resolve the dispute, shall beranedied by arbitration as set torth hereunder. Onission by any asseSsed property owner to give notice in writing within the ten days of his, dispute of the assessment shaH conclusively be deaned his ,consent to same. When any assessment shan have becane final, it shall be due within 20 days ,of ,that date. It ,shaLL be ,an obligation collectii?le by law through all legal ,pre- cess, 7. I\.m3ITAATION. l\riy dispute amOng any of, the parties to this l\greement respecting the interpI'et~ticm, of, 'the:. l\greement or, the application ,of any of its tenns or the action taken by ,any .pclrty in accordaJ1s::e therewith, shall be settled by arbitration pursuant to the'Civil,Code. 8. FINDIl%. The City ,ofP6Way finds that failure to maintain private road to standards prescribed by la~ iidyersely impacts upon the health,safety and welfaFe of all residents th€I'eof~ The City furth~r .finds that inadequatelY main- tained private roads present pbtential hazards tg effieIgencyvehicles and other vehicles in the course of City business and as' ,such are a public nuisance. a. Therefore, if in the City's ,sole juagemen.t' said private road has not been maintail:led,to specifications set' forth pUrsuant to City Ordinances or other standards 'applicable to this l\greement, the City 'wHL thereup6n, provide Written notice toali' parties to this II,greement to initiate repairs or construction within thirty (30) days. Should said parties fail to demonstrate good faith, to make repairs or constrUction at the ~irationof th5!thirty (30) days the City is further anpowered by this l\greenent ,to make all needed repairs to said road and/or construdt said road to meet current' City standards then estahlishect by the Poway City Council as standards, for theherein-described, road, and to then assess costs to all property oWners 'to this l\greerrent., Such assesSfneilt will be established in conformance with tiiepjint system cohtained herein. b. l\hy property owner' failing to make payment to the City for costs inC1ll'red pursuant to Section (a) within ,sixty (60) days of"reeeipt of a billing fran the, City shall be deared in material breach of the agreement. The City shall thereupgn' be entitled to canrence litigation ih any ,court of canpetent Jurisdiction for the recovery of all of said costs. In. the event of such litigation, the City shall be further entitled to thereJ:Covery of' its attorney fees and regal costs reasO- nably incurred therein. (11/8,!l Page 5 of' 7 .' , \"" ;" . , 6~ -' c . P~operty owner (s1 shall ind6!uiifyahd;l1old ~J:f!lless City, City I s Er)gin~" and 1Cheir consultantsanQ. eacl:l,of thgir 2.g;fc:i:3-ls, directors, officers" agents and employees' fran and against all ,liabilitYi claiins, darrages, losses; eXpenses, and other costs, including cOsts of defense and 'attorney's fees, arising out'of or ,resulting ~.ran or in cOnnection with the performance of the work,: both on and off the job-site, and c1uriggang aft:er,cd:npletion', prov{ded that any of the foregoing: il is attributable to bOdily injury, sickness; disease or death, or toinjtity t6 or destruction of property iriCluding the loss of use resuJ,ct;,ing therefran" and 2) ts caused in whoJ,.e:or in par~ by any @:t or qrles,i,or:! of prope:r:tY' OWI1,er, ,any contractor, any subcontr~ctor, ,any supplier" anyone directly or indirectly employed by any of them, or anyorie ,for whose acts oranissions any of them may be liable. Nothing in the, Agreement; the spec'ifi'cations or ,other coritract docUinerits or city's approval of the plans and specit:icatiop_acknowle,dgment of.are;;;pon..., sibility for any such matter , and ,City;, City',s I':ngineer"cand~,their con- sultants, ,and each ,if ,their off.l:fials, directors, off'rcers,: employees and agents, shiillhave absolutely no responsil5iHty or IUibi1!it:ythere- for. d. If City is requirgd, ,tonake nec;:essaxy road repairs in, accordance with subparagraph, (a)aoove; said work shill be ,without Warrahty' to 'property owner, his agentS, or"as'signs. Said rePair, shall be accepted "as is" by said Owheis without ,any warranty of, workmanship. Said repair shall be guaranteed and indemnified by property o\offier in accordance with sub- paragraph(c: ). , 9. ,COVENl\NT RUNNING WI'lliIAND. This' I\gie€irieht shaLt be deemed and is intended to run with,tqe liU1dand be, a restr,iction uPQn said property, shall be 'binding upon and inure to t.he benefit of the undersigned" hiS/her/their lJeirs, ~sonal. representatives, successClrs, and assigns, forever or until such tifiieas the isaid pr'ivate rood shall be dedicated to ,'ahd accepted for use as'a pUblic ,street, or thoroughfare, bymlihicipal ,government lawfUlly exercising jurisdiction over said'private road. 10. RB20JIDING OF I\GREEMEN'J\ It is the purpose of the signators hereto ,that this insti'\iiii€ht be recorded ,to the end ahd iritent that the obligation hereby created shall ,rea reStiTction, upon and shall besecur~ by the saiel property <;md any subsequent traI)sf.er~ ,th,ereof, bya,cceptanc,e ,of <ie!l.ivegr of a, dee:} ancl.%or conveyance of the said property shall ,be deemed to have consented to aDd, becane bound by, these' presents, 'includingwftimut- Hmitation',the right of any ~sOn entitlea tOentorce the ,termS ,of i:hisl\groonent to enforce -,tl1e reStriction therein <:r'eateci;such rem=dy'!:obe ctnnulative and in addition to all other r~ dies at law or inequity. iL ,SUBSEQUENl' USERS, In the event that a party (parcell not originally 'contanplated by' this ll,gret311ent gili,ns access to said private road, that party (parcel) shall be reguired to sul:lscribe to this Agreenent. Should any parcel contempJ;ated.by this i\.greemen,E be spIlt into, multiple parcels (two or rrore), each newly created parcel shall thereupOh be. obliged tina&:, ,tois l\gieeinent and incur its partioh oCmaintenance costs as set, fc5ithby the pointsyst6TIhetein. (1l/84l Page' 6 of7 . .- CAT NO. NN00737 TO 1945\CA';(B-84) J (Corporation) 698 } 55, t STATE OF CALIFORNIA COUNTY OF San Diego On JanUCl,r,y +, 1990 said State, personally appeared personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the President, and ~ TICOR TITLE INSURANCE 1'. J . before me, the undersigned, a Notary Public in and for bCHMIT .. 0: .. % iii " .. '. '~ .. ,~ -::;. personally known to me or proved to me on the basis of satisfactory evidence to be the p"erso~ whl2.. executed the within instrument as the Secretary of the Corporation that e-'6ecuted the within instrument and acknowledged to rr.e that such corporation executed the withininstru- .rnent pursuant to its by~laws or a resolution of its board of directors. WITNESS my hand and official seal. Signature: (I {J f1~ -;;JYI _ ..2~../o " 1F"='=~-=~:::1 .~ ,"'~1;::';~ eFelCIAC '"At, p ./". '~"..'''' ~ ..,-, f~,\. CL~.!RE M, STONES J ~ ~:m.~: ' . tlOTAR, PUBUC , CAlif I P ~ l. PRIi~ClPAL OFr:ICE ii~ '; \ .,'>,i. " SA~ DIEGO COUNTY ~ ~i!Ji"-'P M,"tComm!SSiCntl':liir,eSJan27 19f.13 R ~,~.;)::)l;~~~~""J'~~._-'I (This area for official notarial seall -._It.' '.' '''.",::'-7 oJ. . - .- , . ~, . I IN WITNBSS WifE:ROOF, the parties hereto have executed this Agreement on the dates set forth 'herein~ter: ~73-?J1o - ;:JI t:l:? .(,R3 Tax l\ssessors Numl:>er I a-INERS f?T S':..lItTl,f'VFUdo/Jh1/N;;-Z:VC- Type or Pn:nt Tax Assessors Number Date: OWNERS Type or Print Signature Type or Print Signature (Notary Acknowledgmehtattached) (Each owner shown on Grant Deed must sign) ACCEPl'ED : CITY OF K!iiA.y bY~~ Approved as to form: '. \ ".' .J ( ,J J \ (1l/8~) Page 7 of 7 , ,...-:-;.~ - " . Exhib,it "A'! Rarce.1s 2, 3, & 4 of Rarcel Map 14596, Poway, CA Known as. 17033, 17041, & 17049 Coyote Court, Poway, CA --- - .... (, " , 69.1 Exhib'it "A" Parcels 2, 3, & 4 of Parcel Map I4956, Poway, CA Known, as': 17033, 17041, & 17049 Coyo te Court, Poway, CA , .. , , . ~:;;, :-:~,.' ,,' . ~ ~li~/qo ~ .3; 4 5 P.lY\ . 10'. . '<'Y\ Cl..h..Ul.., ~o;.\\er: ''N\ ~ -, <!.\u.~\~ ~:.~.. ~o. 2. ~5 . ~ 2: ~O SUI.~cta : E.,(,'C"C'C' ~3U..C:.o"('6e.l d.owM~\')'" . Rco.~ ~......~.-. ~ m'3":s.u~'\N"" * '12."\\Qo. O~~ c.. slo E,,'<I',\";'t A _ \...e.C\A\ "Ce5c.'('~~'iIDI-.) ~ ~" p ~c:...l 'Z.?l "\- 4- ~ m~. \ 4- c:l. co 10 5~~~ k ~ ~c.J.. 2..:" "" '\ \ m~ \ L\ '5 '\ ~ &~ s:w..~~ .Lo'C''C''e.e..:rit.l' O\) o~lC\"lJ..1 Cb.M.~ .)u,.. ~~ ~~~. \\ - g~ * ~C\~e~f'I\e..i'" 7 5 3 .. *01 ~~JLJ iOu-J p~.~~ ~ c.-.:f -, ......,..-; ':~"'.",.' -tlTY OF POWA' DqN'I-gQq~SO..t'f~ ~ayor IAN GOLDSMITH,Deputy M~yo! LTh:TIA J3RANN:ON..c:olltlcilmember BOB EMERY, Cbuncilinem1?er CARLR: KRUSE; Councilmember TO: FROM: DATE: County Recorder P.O. Box 1750 San Diego, CA 92112 P6way City Clerk January 15, 1990 SUBJECT: Road Consfriiction and Maintenance Agreement P.J. ~chmil Development, inc. * * ~ * * * * * * * * * * * * * * * * * * * * * * ~ * * * * * * * * * * * * * * Please record the enclosed, original of the above refe"enced document and return it to the C.ity Cl erk 's pf{.ic,e, 'we are enclosing a, checki n the' a.!l1ount'cii' $21 ,for the recording fee. Also, p'lease return a conformed copy in the enclosed seJf- addressed enveiope. Thank you, '1l/(!~nCf~ Admi'ni strative Secretar:.y For Marjorie K. Wahlsten City Clerk /ml Enclosure cc: tngjneerin~ Services Department/Barbara City Hall Located at 13325 CivicCemer Drive Mailing Address: PO Box 789, Poway, California 92064' . (619) 748c6600, (619) 695-1400