Road Construction and Maintenance Agreement 1999-0758356
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;DOC.1999~0758356
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CITY' OF POWAY'
NOV 16. 1999 8:50 AM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
GREGORYJ.9HTH. COUHTV RECORDER
~S: 34.00
2327
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MAINTENANCE AGREEMENT
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CITY CLERK
C iTV' OF POWAY
P.O. BOX 789
POWAY, CA 92074
MOI<A 98-96
The purpose of thi's Agreement is to provi de adequate roadways ,wi thi n the City
'of Powayand ma,intenance of sam,e. Tbi s Agree,ment is executed, 'by th~ parti es
herein as a 'condilion ,of approval by the City qf Poway., to 'a development
project as defined inSect i on 21065 of the Public Resources Code and will r,un
with the la~d in perpetuity as a covenant ul?on the property descri bed here,i n.
The standar:d for improvement will be that standard set, forth by the Poway City
Council. If no standard i,ssp.ecifically set; fort,h by said Council as a
condition, of approval ,of the ProJect, said 'standardwill be those set forth by
the regulatory ordinances of the City of Poway. Th" c(Jnstruction descri,bed'
herein s,hall be accompl,ished prior to filial approval of the project herein by
the City of Poway.
WHEREFORE, the undersigned agree as follows~
1. PARnES AND 'PROPERTY, Tbe parties ,hereto are those property owners
who have executed this' Agreement and their he.irs, executors, admini,strat()y;s,
assigns,and succe~sors, in, iDterest, upon all of whom thi's Agreement shan ,be
binding. The City of Poway shall not be deemed apa.rty hereto, but shall ,De
deemed a benefi c i ar.y. The reaHy held by each party is i dent.ifi ed, by lax
parce 1 number adj acent to the, signature of sa.i d party. The 1 ega 1 descr.; pt.i on
of the parcel Upal'! which the'pr.oject is located is set forth in Exhibit "A,"
attached ;hereto arid incorp()ra,ted herein. The status of property for all
purposes (Le. improved, unimproved, etc.) shall be determined as of the first
Monday in March of each' year.'..
2. ROAD. The roadway shall be that roadway estab'l i shed by the City of
Powa) aSlthe 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 with i n the sol edi scr.ebon of the City of poway as a
c,ondH i on of approval of the develoPrnentproject. The descripUon of tbe road
which is the subject of this Agreement is attacbed hereto as Ex'hibit"B" and
made a. part hereof.
3. CONSTRUCT<iON AND ROUTINE MAINTENANCE. The cost of construction,
capital improvements an(j/or roufine maintenance resu.1ting ,from ordi.nary wear
and tear shall be borne by the parties i~ accordance with tbe following
formula:
a A private road not pr.ovidilig access to publi~ roads in both
directions is analogous to any road terminating in a cul-de-sac
Under such ,cond it i o,ns, pr()pertyo\:lners nearest the sole pub 1 i c
access road will not have occasion to use the full course of said
private road Gi~:n such circu~stancei. fairness di~tates tbat only
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those: property owners commonly travers ing, a porti on of the pri vate
road :shall: be made to' bear the cost ()f maint,ail}ing that porti(),n of
tbe .i;Oii'd.1herefore , construction, i IlIPr;.ovement, 'and. ma i ntenal}ce
costs of portions Of the roaduse'd on ry.be certain, persons, because
situated further from tbe roadentranCiLand beyond the property
perimebi'rs or-boundaries of other' parf.ies, shilll be borne only by
thoseparti es.
b. Construction improvement and/or mai.ntenance of the road by all
part,ies who use the road in common shall be allocated in accordance
with the following point system:
(1)
Each party automatically is allocated 10 points by virtue of
ownersh.i p of any size of undeve 1 oped land to which access is
provi ded by th'e road. For each acre;, of 1 and (rounded to the
nearest acre) 1 ~oint shall be allocated
For each acre (rounded to the nearest acre) of land developed
for grove use" a,n additional point shall be allocated.
For a residential structure or recreational structure which is
used not ,more than 30% of the ti~e, 10 additional points
(Hilusin9 for agri'cultural workers shall not be deemed a
"res i dent i alstructure." A man~ger's or foreman's res i dence
shall be deemed a "residential structure ")
For a resident,ial structurewhicb is used more than 30% of the
time, 40 additional points sball ~e allocated.
(2)
(3)
(4)
For any vehicle one tone or over, registered to the owner of any
parce.l 'and used by same over any por,tion of said road for any
period of time, 5 points,
c. Example 1 of the formula: Assume that: the road from starting point
toowner A's,. fartbest boundary of land from said starting point is
65% of ,i ts length;, from there to Band C's farthest boundary is 35%
of its length; from that point, the end of the road, D's property
begi ns. Ahas 20 acres of un improved 1 and,. B has 40 acres of
unimproved land, C has, a 20 acre drove with a full-time residence.
D has IO acres-~f ~nimproved land. Cost of construction (or repair)
of the entire ro~d for the year in questions is $10,000; repair of
the gatei:s $2,000.
(5)
B 4,0 acres
ROAD D 10 acres
C 20 acres
A 20 acres I
Solution to Example: (see graph)
Cost of the gate and 65% of the road is shared by all. Thirty-five
percent of the road cost is shared only by B, C, and D Ratio of
sharing is determined by tbe following point of allocation:
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~., OWNER ALL ,ACRES " GROVE' I RES I TOTALS ~
A 10 20 30
B 10 40 50
C 10 20 20 40 '90
D IO 10 20,
TOTAL POINTS 190
As to $8,500 of "the cost: (65% of road and gate)
A pays 30/190tbs
B pays501'190ths
C pays ~o.'lI9o.ths
D pays 20j190ths
or
or
or
or
$ 1,342.10
$ 2,236.84
$ 4,026-.31
$ 894.75
As to $3,500 .additiof1a1 cost: (35% of road),
B pays :!j0/160tbs
C pays 90/!60ths
D pays 20jl6Q,ths
or
or
or
$ 1.,094.00
$ 1,969 20
$ 437.60
d Examol e2 of theformu,l a,: Assume the r,oad ;'sa tbrougb road. That
is, it may be tfaversed in both di rections' by any abuUi ngpl;operty
owner. ,Assume tbe same status of the property for pOlnt purposes as
in txamJii e 1.
B
40 acres
D
10 acres
ROAD
,
A
20 acres
C
20 acres
Soiution to Examo1e: (see graph)
~, OWNER ALL I ACRES :GROVE I RES I TOTALS ~
A 10 20 30
B 10 40 50
C 10 20 20 40 90
D 10 10 20
TOTAL POINTS 190
As to tbe $12,000 c.ost:
Ap~ys 30/I90ths
B ~aYs 50/190ths
{,paYs 90/190ths
Dpays 20/190tbs
or
or
or
or
$ 1,894.73
$ 3,158.00
$ 5,684.40
$ 1,263'20
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4. EXTRAORDiNARY DAMAGE, It shall be the obl jgation of each party
He,reto to nfake and pay'fo'r all ,repairs to road, and to a,ll related ~structur~s
(dra,; ns, gutters':, gates', fences, etc.). when the ,same have ,been damaged by the
extraord i,nary use of 'such party ,or hE age6ts,oi' employees,. Examples of
extraordinar,y' use at"gdamage caused by tractortyp,e vehicles and damage caused
by heav,yequipment (1 tOn or over;) such as migtit lJe used during constructfoh
Of a residence. Ordina.ry use of said road w.ill be for passenger vehicles and
1 ight truck (3,/4 ton or 1 ess) tra.ffic. Ordinary wear and tear or ordinary use
shall be that gradual and over a period wearing caused ,by such oc,d.inary use.
Extraordinary use iscausi;ng im,mediate damage with any vehicle or any damage
caused by a vehicle not defined within ordinary use traffic. -
5. INITIATION AND MANAGEMENT OF REPAIRS.
a. Any system f.or achi'e'{ement of repairs and payment of costs ,which, in
the year inquestJon;, is agreeable to the majority of part i es, shall
be the systemut.i 1 fzed
b . "Majori ty" 'i,s any group 'of landowners: holding 51% or more of the
"poi nt!i" as cal cuTated in paragraph 3. TheY'may in it i ate and manage
a program of l'oad .maintenance, or maintenance and repair of related
facilities; such,as gutters, gates, et~. The time and effort
expended by part.ies hereto in such management shall not be
compensated. All otber costs incurred shall be shared in accordance
with the abov'e for'mul a,
c. Achievemento.f the mfn;imum 51% consens~s respecting maintenance shall
be evidenced by a wr,itten statement, signed by parties purporting to
const itute such representat ion, A copy of the wri ttenstatement
shall be sent to the address of each party ,as shown on the 1 atest
t<ix'assessor's ron, at least two, weeks pr'for to the commencement: of
any work or the incurring of any maintenance costs.
6,. ADMINISTRATIoN OF COSTS. The property owner or owners initiating
repairs or capital improvements shall be in charge, of making the payments
requ i red for the wprk ofi mprovement. It shall be i n'cumbentupon all property
owner~:to contribute to tha~~n~ral fund to be ~sed for maintenance or capital
improvement in accordance, with the point computations referenced above. After
the act~al expenditure bf' funds by any owner or ,gr;.9up of owners such parties
shall be ent i tl ed to assess all other part i es to'th.i 5 Agreement in accordance
with the formula set forth above. Said assessment notice shall clearly
spec i fy tbe expenditure~, the purpose, for same, and the method of ca 1 cul ati on.
Upon'l'ece.ipt of any such noti~e of assessment~ 1he assessed property owner
shall have ten days in which to dispute th~ assessment. Failure to resolve
the dispute sball be remedi ed by arbitrat i on a,s, set forthhel"eunder. Omi ss i on
by:any assessed property owner to g,ive notice in writing within the ten days
of h,is ct:isputeof tbe assessment sha'll conclusively be deemed his consent to
same. When any ass'essment sball bave become final, it shall be due w.ithin 20
days of that date. It shall be an obligation coilect1ble by law tbrough all
1 ega 1 process.
7. ARBITRATION. Any d,isput:,e among any of tbe parties to this Agreement
respect; ng the interpretat i on of the Agreem(!nt or the appl icat iO,n of any of
its terms or the acti on taken by any, p'arty in accordance therewith , shall be
settled by arbitration pursuant to the Civil Code,
8. FINDING, The City of Poway finds that fa,ilure to maintain private
road to standards prescribed by law adversely impacts upon the health, safety,
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and welfare of' 'a 11 resi dents thereof. The Ci.ty ,further ,f-i nds that
inadeqUate l~y fnaintai ne<i ,private roads present potenti al hazards to emergency
vehic,les an'd other'vehftles in the course of City business and as such are a
publ'ic nujs~nce.
a,. Jherefore, if in the City's sole judgem~"nt said private road has not
been maintained to specifications set forth ,pursuant to City
Ord,i nances or other s.tandards app 1 i cab.le to th is Agreement, t_~eCity
will thereupoil provide written notice to all parties to this
Agreement to initiate repairs or construction within thirty (30)
days" Should said parties fail to demonstrate good faith to make
repairs or construction at the expiration of the thirtY (30) days,
the City is fur,ther empowered bythi s Agreement to make all needed
repairs to said road and/or construct said, road to meet current City
standard~ for the herein-described road, and to then assess costs to
all property owners to this Agreement. Such assessment will be
establ ished in conformance with the p"oint system contained herein.
b. Any property owner failing to make payment to the City for costs
incurred pursllant to Section (a) within sixty (60) days of receipt of
a billing from tbeCity shall bedeemedi nmateri'a 1 breach of the
agreement. The City shall tbereupon be entitled to commence,
i itigation ,in anY',court of competent jurisdi'ct,ionfor the recovery of
all of said costs.. In the event of such litigati()n, tbe City sh,!,ll
be further entitled to the recovery of its attorney fees and legal
costs reasonably' incurred therein,
c, Property, owner(s) shal,l indemnify and ho'Td harmless City" City's
Engi neer, and the,ir, consultants and 'e,acb of their offi'cial s,
directors, officer's, agents, and employees from and against all
1 i abil i ty, cla.ims, d'aniages, losses, exp~nses, and other costs,
i nc 1 udi ng costs, of defense and attorney's' fees, ari sing out of or
result i ng from or in connection with the performance of the'work,
both on and off tbe job-s ite, and during and after comp let i on,
provided that any of tbe foregoing: n is attributable to bodily
injury, sickriess, disease or death, or to injury to or destruction of
property inchlding t,be 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, s,uPpJ ier, anyone directly or
indirectly emp'loyed by any of them, or anyone" for whose acts or
omissions any,Qf thenimay be 1 i abl e.Nothi ng in the Agreement, the
specifications' or other' contract documents or City's approval of the
plans and specifi cation acknowl edgment of a respons,i bi'li ty' for any
sucn matter, and City, City's Engineer, and their consultants, and
each if their offi ci a 1 s, dj rectors, offi cers, ,employees, and agents,
shall have absolutely no responsibil ity or liabil ity tberefor.
d' If City is required to make necessary' rO,ad repairs in accordance with
subparagraph (a) above, said work shall be without warranty to
property owner, hi s agents, or ass,igns. Said repai r sball be
acc~pted "as, is" by said owne,rs .without any warranty of workmansbip,
Said repair sball be guaranteed and indemnified by property owner in
accordance with subparagraph (c).
9, COV,ENANTRUNNING WITH LAND, Th is Agreement shall be deemed and is
intended to run witb tbe land and be, a restriction upon said property, shall
be bi ndi ng up.on and inure to the benefit of the unders i gned" his/her /thei r
he'irs, personal rep'resentatives, successors and 'ass;'gns. forever or until such
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time ii,s th_es,!id pr:iVate road shall be,dediGated>to and accepted for use as a
pub,l i c . s,treetor th,QrQ.ughfare by inunidpirl govelfnment 1 a'wt:uJly exercis i ng
jurisdidi'on 'over said private road,
1'0. RECORDING 'OF AGREEMENT It is the purpo,seof the signators hereto
,thitt thi:s ins'triJinent ber~i:;6rded to the end 'and 'intent .that the obl igation,
hel:eby created shan bea,r~striction upon iindshaH be ,secured by the said
property and ,!ny subsequent transferee thereof, by acceptanc,e of del i.very of a
deeaand/ar conveyance,o,f the sa i dproperty sllall be dee,med to hgve consented
to :ilnd become bou'1d by'these presents, inc 1 udirgMithout 1'i mi tat ion, the ri ght
of any person ,entitled fa enforce the terms of th,i s Agr:eement to enforce the
restriction therein created, such remedy to be cumulat'ive and in addition to
an other remedies gti'aw or in equity,
11. SUBSEOUENT USERS; In, the event that a p<\rty (parcel) not ori gi na 11 y
contemp latedbythi s Agreement ga i nsaccess tosa,i d private road, that party
(parcel) shall be required to subscribe to thisAgreement. Should any parcel
contemp 1 ared bY th is Agreement be spUt into mul tfpleparce 1 s (two or'more)
each newly created parcel shall thereupon be obJ ig(!c! lin,ger this Agreement and
incur its portion of maintenance costs as set .forth by "the point 'system
herein. ' .
IN WITNESS WHEREOF, the parti es hereto have executed thiS Agreement on the
dgtes set forth berei.nafter:
Tax Assessor's Number 3,,2 1~)'1 0 -0 ~
OWNERS n/'chael 5j; Ive-s~er
T\ype6r Print
Cb:the:f1 'At:.- fJy,lvt:.-s f- er
Type or, Pri nt
Date 7-0?~ -'j '9 "
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Signature, '
(7/2.'fI!et~t1J / ~
Signature '
(Notary Acknowledgment attached) (Each owner shown on Grant Oeed must sign)
Tax Assessor's Number Date
OWNERS
TypeorPriTlt Signature
Type or Print Signature
(Notary Acknowledgment attacbed) (Each owner shown on Grant Deed must sign)
ACCEPTED
CITY OF POWAY
By
as to fOrln:
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City t ney
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CALlFORNIAALL.IPURPOSE ACKNOWLEDG.!\IIEN:r
Stateof'California
County of ~ '" '\),C',Of)
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on~ \ Y 6)Q J ffi5 before me,
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personally appeared' a.: en iJ?
Name and Title of Officer (e:g.. "Ja e Doe;'Nolary Publi ")
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Na e(s) i?fSlgner(s)
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o proved to me on the basis of satisfactory
evidence
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to be the person(s) whose name(s) is/are
subscribed to the within instrument and
acknowledged to me, that he/she/they executed
the same 'in his/her/their authorized
capacity(ies), and that by his/her/their
signature(s) on,the instrument theperson(s), or
the entity upon behalf.of which the person(s)
acted, executed .the instrument.
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Place Notary Seal Above
Signatureal Notary Public
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Though the information below is'i!otiequired bylaw, it may prove'valuable to persons relying on the document
and could prevent frau(JiJ}'enf removal 'and reattachment ofthisiorm,to another document.
Description of Attached~cumdt a dk
Title or Type of Document: ,m "CY.7.~xJe.h(),;(/ Q... / ICCtdXr
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Signer(s) Other Than Named Aoove:, " eniJe. ,~Jtle.5.Jc~Me~ rk
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Signer Is Representing:, 6~ ~ '
@1997NationaINotaryAssodation;9350DeSotoAve., P.O. Box 2402. Chatsworth. CA 91313-2402
Prod. No. 5907
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CALIFORNIA ALL.PURPOSE' ACKNOWLEDGMENT
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State, of California
County of :~n VI T'JieO, ()
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0;;:"'; ;;h j c?9, J!fCl9 ,before me,
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personally appeared /Ill (?~hoeJ..
Name and Title of Officer (e,g..
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evidence
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to be the person(s) whose name(s) is/are
subscribed to the within instrument and
acknowledged to me that he/she/they executed
the same in his/her/their 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 instrument.
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Place Notary Seal Above
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OPTIONAL
Though the information below is'not'requiredby law, it may prove valuable to persons refying on the document
and could prevent fraudu'fmf removal and reattachment ofthis form to another-document.
Description of AltaChed...9llf.umeny, / A/'
Title or Type of Document:' fJc:t:i/) (.2Yz!)fp -' II) f1/')/1 / 9-nlJit1-tert1rK7 t?
Document Date::JU/". ~ /999 NumberofPagesc ~
Signer(s) Other Than Named Above, aY0e// I~ .....-5(-// i4?,'Jt;ee
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Signer' Is Representing: ,,-fur,
RIGHT THUMBPRINT
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@ 1997 National Notary Association. 9350 De Solo Ave., ?Q. Box 2402. Chatsworth, CA 91313-2402
Prod. No. 5907
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Reorder: Call Toll-Free 1-800-876-6827
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EXHIBIT"N
All that portion of the Southeast Qua.rter of tbe Northwest Quarter of th~ Soutbeast Quarter
of Section 6 Township 1'4 S6uth',:Range I West, San Bernardino Meridian, according to
tbe Official Plat thereof, iJescribed as follows,
Comme[1cing at the Nonhwest comer of the Southeasl'~Qu.arter of the Northwest Quarter of
the Southeast Quarter of said;,Section 6, thence SoUth 00912'-26" East along the Westerly
line tbereof, 133 00 feet to the:NorJ1,westerly comer of lahd described in Parcel I in deed
to Richard F Van Ronk, et,ux, ,recorded August 14,1958-, in Book 7212, Page 296 of
Official Records; thence a:Iong,theooundary thereof'South88050'40" East, 167' PO feet,
South 000 12'26" East, 132',00 feet and South 88 050'40" East, 8304 feet to the True Point
of Beginning; thence continuing along said boundary, South 88050' 40" East, 83 61 feet,
more or less, to the Northwest comer of land described in Parcel 2 in said deed to Van
Ronk, thence along the boundary of Parcel 2 as follows,
Soutb 88050'40;' East, 1-5499 feet, thence South 0002'20" East 182 55 feet, more or less,
to the Soutbeasterly comer of said Parcel 2, tbence along the Southerly line of said Parcel 2
and said Parcel j, Nonb8804S'05" West 23862 feet, more or less, to 'an intersection with
a line which bears South 06012'26 East from the True J:'oint of Beginning" thence North
00012'26" West, 182,55 feet, more' or Jess, to the True Point of Begmning
EXCEPTING therefrom the mobile home or manufactured housing unit and appurtenances,
if any, located on said land,
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