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Private Streets Maintenance Agreement 1999-0592016 ., - - . . 3181 DOC. 1999-0592016 ---"'. - " RECORDING REQUESTED BY' CITY OFPOWAY AND WHEN RECORDED MAIL TO: fg l~ CITY CLERK CITY OF POWAY P.O. BOX 789 POWAY,CA 92074 AUG 27. 1999 8:55 OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE GREGORY J. SMITH, COUNTY" RECORDER ills: 25.00 AM NO.transfer lax due , -flfllI"" fI fill "" 1[( 11I1 r (Th"s S .. '.. ..- -,_.. ,_,1999..0592016 JlCI\'c IVI ..I'ti...v......, ~ ....~....J PRIVATE STREET MAINTENANCE AGREEMENT THIS PRIVATE STREETMAjN.TENAf\jCE AGREEMENT ("Agreemenf') dated for reference purposes as of the 6th day of May, 1999,is entered into between The Cannar Comoany.lnc. (hereinafter referred to as "DEVEL6PER~'), and the CITY OFPOWAY, a municipal corporation (hereinafter referred to as "CITY"), for the benefit of future lot owners who will use'the PRIVATE STREET (hereinafterreferred to. as "LOT OWNERS," which shall include the DEVELOPERto the extent the DEVELOPER retains any ownership interest in any lotor lots within the PROPERTY). WHEREAS, this Agreement is required as a condition of approval by the CITY of a Minor Development Review Application. WHEREAS, DEVELOPER wishes to provide for the. maintenance and repair of those certain PRIVATE STREET described and shown on Exhibit A attached. hereto and made a part hereof (hereinafter referred to as the ("PRIVATE STREET"); commonly known as Janeen Place. WHEREAS, DEVELOPER is the owner of certain real property developed as PM #10709 that will use and enjoy the benefit of such PRIVATE STREET A complete legal description of said real property is included in ExhibitBattached hereto and made a part hereof. Said real property is hereinafter referred to as the '!PROPERTY;" WHEREAS, it is themutual.desire of the parties hereto thatlhePRIVATE STREET be maintained in:asafe and usable condition; WHEREAS, it is the mutual desire of the parties hereto to establish a method for the maintenance and:repair of the PRIVATE STREET and for the apportionment of the expense of such maintenance and repair; WHEREAS, it is the mutual intention of theparties,thatlhis Agreement constitute a convenant running with the land, binding upon each successive LOT OWNER of all or any portion of the PROPERTY . 3182 . NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS. The property benefited by this Agreement is the PROPERTY The present and successive LOT OWNERS of all or. any portion of the PROPERTY are expressly bound hereby for the benefit of the PROPERTY 2. The cost of maintaining the PRIVATE STREET shall.be divided equally among the subdivided parcels created in the property and paid by each LOT OWNER or his or her heirs, assigns and successors in interest. 3. The repairs and maintenance to beperformed'under this Agreement shall be limited to the following, unless the consent for. additional work is agreed to by a majority vote of the LOT OWNERS owning 100% Qf the number of parcels. Reasonable and normal road improvement ma[ntenance.work to adequately maintain the 'PRIVATE STREET and any egress to and from the lots within the PROPERTY Repairs and maintenance under this agreement shall include, but are hot limited.to, filling of chuckholes, repairing cracks, repairing and resurfacing roadbeds,.repairing and maintaining drainage structures, removing debris, maintaining signs, markers, striping and. such other work as is reasonably necessary orproperto repair and preserve the PRIVATE STREET for normal access, ingress and egress purposes. 4 If there is a covenant, agreement or other obligation imposed as a condition of project approval,tb make private road improvements io the private road easement, the obligation to repair and maintain the privatiHoad easement as herein set forth shall commence when the private road improvements have been completed and approved by the ~ ITY 5. The cost of any extraordinaryJepair required to correct damage to the PRIVATE STREET shall be the responsibility of the party causing the need for such extraordinary repair The repair shall be such as to restore the PRIVATE STREET to the condition existing prior to said damage. 6. 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 shall be entitled withoutfurther notice to institute legaJ action.for the collection of funds advanced on behalf of such owner in accordance with the provisions of the California Civil Code SectionB45, and shall be entitled to recover in such action ;n addition.tothe funds advanced, interest thereon atthe 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 attorney's fees. 7 Any liability of the LOT OWNERSfp! personal injury to the agent hereunder, or to any worker employed t6 niake repairs or provide maintenance under this Agreement, or to.third persons, as well as any liability of the lot owners for damage to the property ofageni, or any such worker, or of any third parties, as a result of or arising out of repairs and maintenance under this agreement shall be borne, as between.the LOT OWNERS in the same percentages as they bear the 2 . 3183 . ~-:t ',r" costs and expenses of suchrepairs~nd~m_aintenance. Each iot owner shall be responsible for and maintain his@~roWnil1slirance. By this agreement, the parties do not intend to provide fpf the sharing of liability with respect to personal injury or property damage other than that attributable to the repairs and maintenance undertaken under this agreement. Each of the lOTOWNERS agrees to indemnify the others from any and all liability for injury to him/her or damage to hislher property when such injury ordamageresults from, arises out of,.or is attribulableto any maintenance or repairs undertaken pursuant to this Agreement. 8. LOT OWNERS shalljointly and severally defend and indemnify and hold harmless CITY, CITY's e:ngineer 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 LOT OWNER, any user of the PRIVATE STREET, or to any other third parties,arising .out of or in any wafrelated to the use. repair or, maintenance of the PRIVATE STREET. Nothing in this Agreement;,thespecifications, or other contract documents or CITY's approval of the plans~ndspeQifications for or inspection o( the work regarding, thePRIVA TE STREET is intended to include a review, inspection, or acknowledgment of a responsibility for any such matter, and CITY, CITY's Engineer, and their consultants,ang each oflheir officials, directors, officers, employees and agents, shall have absolutely no responsibility or liability therefor 9. If in the CITY's sole judgment the PRIVA TESTREET are not being maintained to standards set forth in paragraph A of this Agreement, the CITY may thereupon provide written notice to all the LOT OWNERS to initiate repairs or construction within ninety (90) days, Upon failure to demonstrate good faith to makerepairs or construction'within ninety (90) days of receipt of such notice the lOT OWNERS agree that the CITY may make all needed repairs to the PRIVATE STREET to meet thestandcirds set, forth in paragraph 4 and to then assess the costs to all lOT OWNERS equally The LOT OWNERSshallreimburse the CITY for all reasonable costs incurred by the CITY in connection with such maintenance activities.lf,thelOT OWNERS do not reimburse the CITY within thirty (30) days after City's demand, then CITYmay pursue all of its remedies at law or in equity 10. lithe CITY elects:to make necessary repairs in accordance with paragraph 9 above, said workshallbe withoutwarranty Said repair shall be accepted "as is" by the LOT OWNERS withoutany warranty of workmanship. 11 The foregoing covenants shall run with the land and shall be deemed to be for the benefit of the land of each of the LOlOWNERS and each and every person who shall atany time own all or.any'portionofthe PROPERTY referred to herein, 12. It is understood and agreed that the covenants herein contained shall be binding on the heirs, executors, administrators, successors and assigns of each of the LOT OWNERS. 3 . 3'184 . 13. It is the purpose of the signatory, hereto that this instrument be recorded to the end and intenUhatthe obligations hereby created.shall'be,and constitute a covenant running with the land and anysubseCjuemlpurchaser of all'or any portion of the PROPERTY,byacceptance of delivery of a deedand/or conveyance, regardless of form, shatl.be deemed to have consented to and become bound by this AGREEMENT 14. The terms'ofthis Agreement may be amended. in writing upon majority approval of the LOT OWNERS and consent of the CITY 15. This agreement shall be governed by the laws of the State of California. In the event that any,ofthe provisions of this Agreerilemlare held to be unenforceable or invalid byahy courtof9ompetent jurisdiction, the validity and enforceability of the remaining provisions shall not be affected thereby IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth hereinafter The Cannar Company, Inc. a California Corporation BY~'r-' "" ~iP A. Cannariato ~.~ ACCEPTED' Date: (-2,.8-<1., 8-)-~"\ CITY OF POWAY . . Date: 7-Z-f6-?9 Date: 7-26-7'7' 4 ATTACHED TO THE PRIVATEi,STREET tlAINTENANCE AGREEMn!T .CALI'FORNIAAlL.PURP~ ACKNOWLEDGMENT .3185 State of CALIFORNIA Cou nty of SAN DIEGO Date before me, SHAM.i\RA VELASCO Name and Tille 01 Officer le.g., Jane Doe. Notary Public") On 8/3/99 personally appeared PHILIP A. CANNARIATO Name(s) ofSigner(s) o personally known to me tJ proved to me on the basis of satisfactory evidence )A~--~~^_~_~_Af ... "~'" SHAMARA VELASCOs: () . " COMM. # 1190534 CI -0 . NOTARY PUBLlC,CALlFORNIA Gl :2 . SAN OIEGO COUNTY 0 I "IFofl' COMM. EXP JULY 31, 2002t . ~ ~ - - ~ - ~ - - - - ~ ~ to be the person(s) whose name(s~re subscribed to the within instrument and acknowledged to me thqi'fieyshe/they executed the same ir@Zherltheir authorized 2trp'acity(ies), and that b~er/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. ",j <-k~ ~~ Signature of Notary Public OPTIONAL Though the information below is not required-by taw, it may prove valuable ,to persons refying on the document and CQuld prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: o Individual o Corporate Officer Title(s): o Partner- 0 Limited 0 General , o Attorney-in-Fact o Trustee o Guardian or Conservator o Other' . Top of thumb here o Individual o Corporate Officer Title(s): o Partner - 0 Limited 0 General o Attorney~in-Fact o Trustee o Guardian or Conservator o Other' . Top uf thumb hfiJre Signer Is Representing: Signer Is Representing: @1996 National Notary Association. 8236 Remme! Ave., P.O. BOK 7184. Canoga Park, CA 91309-7184 Prod. No. 5907 Reorder; Call TolI.Fme 1-800-876-6827 . 3186 . Exhibit "A" Janeen Road as depicted on Parcel Map No. 10709, in the City of Po way, County of SanDie go, State ofCaJifomia, filed in the office of the County Recorder of San Diego, November 20,1980 . 3187 . Exhibit "B" Parcels 1, 2, 3 and 4 of Parcel Map No. 10709, in the eity of Poway, County of SanDiego, State of California, filed in the office of the County RecordeT of San Diego, November 20, 1980