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Road Construction and Maintenance Agreement 1999-0568914 ,.. ,. (B q(P, " . t, ..I'. . ' ) ) ) ) AND WHEN RECORDED MAIL TO: ) ) ) ) ) ) ) ) (This soace for R.:sf'-"--'."~\ I :~~NT~~~~~Ui~lrEM~~ III "" lIII " /lUll I"" I" Ir ( 1./ -.-") 1999,0568914 r:O/n'lf Cr. The purpose of this Agreement is to provide adequate roadways within the City of poway and maintenance of same. This Agreement ls executed by the parties hereln as a condltlon of approval by the Ci,tyof PoY/ay" to a development project as defined in Sedlon 21065 of the, Publ ic Resources Code and wl11 run with the land in perpetuity as a covenant upon the property described herein. The shndarll for improvement wi 11 be that standard set, forth by the PO\llay City Council. If no standard .1s specifically set forth by said Councllas a conditlon of approval ,of the project, sald standard .will be those set forth by the regulatory ordinances of'the Clty of Pow~. The: construction descrlbed herei n shall be accompl i shed prior to fi na 1 approval of the project herel n by the City of Poway. c..RECORDING REQUESTED BV: -;" . CITY OF POWAV. Doctt 1999-0568914 AUG 17. 1999 2:29 PM .,> G ITYCLERK tnv' OF POWAV P.O. BOX 789 POWAV, CA 92074 , OFFICIAL RECORDS SAN DIEGO COUNTV RECORDER'S OFFICE GREGORn SIIITH, COUNTV RECORDER FEES: 31. 00 GO'(7 ..'>..-. WHEREFORE, the undersigned agree as follows; I. PARTIES AND PROPERTY. The parties hereto are those property owners who have executedth,is Agreement and their hei rs ,executors ,admi n i strators, assigns, and successors;n interest, upon all of whom this Agreement ,shall be binding. The City of Poway shall not be deemed a party hereto, but shall be deemed a beneficiary. The realty held by eachpartj is identified by tax parcel number adjacent to the signature of said party. The legal description of the parcel Uprill which the project is located is set forth In EXhibit "A," attached hereto and incorporated herein. The status of property for all purposes (i.e. lmproved, unimproved, etc.) shall be determlned as of the first Monday in March of each year. 2. BQA!;!. The rOlldway shall be that roadway established by the City of poway as the roadway best suited to provlde access for the City emergency vehicles and/or City projects (\lIater" sewer, e:l:I:..)' . The locatlon of sald roadway shall bewith,in the ,sole discr:etion of the City of Poway asa condition of appr.oval of tHe development project. The description of the road which is the subject of this Agreement is attached hereto as Exhibit "S" and. made a part hereof. 3.. CONSTRUCTION AND ROUTINE MAINTENANCE. The cost of construction, capital improvements and/or routine l11a.intenan,ce re'sultingfrom ordlnary wear and tear shall be borne by the parties in accordance with the following formula; a. A .prlvate road not providing access to public roads in both directlons is analogous to any road terminating in a cul-de-sac, Under such conditions. proper~y owners near-est the sole public access road will not have occasion ~9 use the fun course of said private road, Given such circumstances, fairness dictates that only those prop. owners commonly travers,ing aArtion of the private road s~allbe made to bear the cost ofmainmrilng that portlonof the road. There'fol'e, construct ion, 'lmprovemerit, and maintenance costs of portions of the road use~. ,only 'be certalnpersons. becausecO si tuated further from the road entrance and beyond the property 78 perimeters or boundarles of other parties, shall be borne only by those parties. b. Construction improvement and/or maintenance of the road by all parties who use the road in common shall be allocated in accordance with the fo 11 owi ngpoi nt system: (1) Each party automatically is allocated 10 points by virtue of ownership of any size of undeveloped land to which access ls provided by the: 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 additlonal point shall be allocated. (3) For a residential structure or recreational structure which is used not more than 30% of the tlme, 10 addi t i ona 1 poi nts. (Hous log for agri'cultura 1 workers shall not be deemed a "residential structure." A manager's .or foreman's residence shall be deemed a "residential shucture,") {4l For a res.identialstructure which is used more than 30% of the time, 40 additional points shall be allocated. (5) For any vehicle one tone or over, regJstered to the owner of any parcel and used by same over any portion of sald road for any period of time, 5 points. c. Examo1e 1 of the. formula: Assume that the road from starting point to owner A's farthest boundary of land from sald starting point is 65% of its l,ength; from there to Band C's farthest boundary is 35% of its length; ,from that polnt, the end, of the road, D's property beglns. A has 20 acres of unimproved land. B has 40 acres of unimproved land. C has a 20 acre grove with a full-tlme residence. o has 10 acres of unimproved land. Cost of construction (or repair) of the entire,road for the year in questions is $10,000; repair of the gate is $2,000. B 40 acres ROAD D 10 acres C 20 acres A 20 acres I Solution to ExamDle: (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 deterinfned by the following point of allocation: -2- ~ . J 'VE I I ~ OWNER ALL ACRES RES TOTALS A 10 20 30 B 10 40 50 6079 c 10 20 20 40 90 0 10 10 20 TOTAL POINTS 190 As to $8,500 of the cost: (65% of road and gate) A pays 30/190ths or $ 1,342.10 B pays 50/190ths or $ 2,236.84 C pays 90/190ths or $ 4,026.31 o pays 20j190ths or $ 894.75 As to $3,500 addltlonal cost: (35% of road) B pays 50 jl60ths or $ 1,094.00 C pays901160ths or $ 1,969.20 o pays 20/160ths or S 437.60 d. ~xamDle 2 of the formu'la; Assume the road is a through road. That is, it may be traversed in both directions by any abutting property owner, Assume the same status of the property for point purposes as in Example 1. B 40 acres 0 10 acres ROAD A 20 acres C 20 acres Solution to Example: (see graph) ~ OWNER ALL ACRES GROVE I RES I TOTALS ~ A 10 20 30 B 10 40 50 C 10 20 20 40 90 0 10 10 20 TOTAL POINTS 190 As to the $12,000 cost: A pays 30j190ths or $ 1,894.73 B pays 501190ths or $ 3,158.00 C pays 90j190ths or $ 5,684.40 o pays 20/190ths or $ 1.263.20 -3- 4. EXTRAOitoiN.DAMAGE. It shall be the obl ieon of e~ch party 60 r hereto to make andp,ay for all repa hs ta. road, and to all re.lated structures 80 (drains,~utters, gates, fences, etc.) when the same hav.e been damaged by the extraordinary use of sych party or hh agents or employees. Examples of extraordi nary use: are ',c:Iamage caused by tractor type vehi cles and damage caused by heavy equipment (l ton or over) such as might be used durlng construction o~ ~., residence. Orilinary use of said raadwill be for pas~,enger vehicles and l1ght truck ,(3/4 ton or less) traffic. Ordlnary wear and tear ar ordinary use shall ;be that gradual and over a period wearing caused by such ordlnary use. Extraordinary.use is causing immediate 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 for achievement of repairs and. payment of casts whlch, in the year in question, ls agreeable to the majority of parties, shall be the system utilized. b. "Majority" is any group of landowners holding 51% or more of the .points" as calculated ln paragraph 3. They may initiate and manage a program of road malntenance, or maintenance and repair of related facil Hies; suthas.gutters, gates, etc. The time and effort expended by parties hereto in such management shall not be compensated. All other costs incurred shall be shared in accordance with the above formula. c, Achievement of the minimum 51% 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 to the address of each party, as shown on the latest tax assessor's roll" at least two weeks prtor to the commencement of any work or the incurring of any malntenance costs. 6. ADMINISTRATION OF costS. The property owner 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 lmprovement ln accordance with the point computations referenced above. After the actual expenditure of funds by any owner or group of owners such parties shall be entltled to assess all other partles to this Agreement in accordance with the formula set for:th'above. Sald assessment notlce shall clearly specify the expenditures, the purpose for same, an.d the method of calculation. Upon re~eipt of any such notice of assess~ent,the, assessed property owner shalf have t,endays inwhi~h to disputet~e assessment. Failure to resolve the 'diispute' ;shall be remedied by arbitration asset forth he,reunder. Omi ssei on 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 assessment shall have become fi nal, it shall be due wi thi n 20 days of that date, It shall be an obl igatilin collectible by law through all legal process, 7, ARBITRATION, Any dispute among any of the parties to this Agreement respecting the interpretation of the Agreement or the appl ication 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. 'B. FINDING. The City of poway finds that failure to maintain private road to standards prescribed by law adversely impacts upon the health, safety, -4- and welfare of all Aidents thereof. The City furA finds that inadequatelymalnta"ftredprivate roadspresentpotenMl hazards to emergency6'O () vehicles and ,other vehicles in the course Of City buslness and as such are a cfl public nuisance. a. Therefore, if 'in the City's sole judgement said private road has not been' m,aln:tained to specifications set forth pursuant to City Ordinal\ces or other standards applicable to this Agreement, the City will thereupon provide written noUce to all parties to this Agreement to initiate repairs or coristructlon 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 further empowered by this Agreement to make all needed repairs to said road and/or construct said road to meet current City standards for t~e herein-'described road, and to then assess costs to all property owners to this Agreement. Such assessment will be established ln conformance with the polnt system contalned hereln. b. Any property owner fail i ng to make payment to the City for C()sts incurred pursuant to Section (a) within sf)(ty (60) days of rece.ipt of a bi 111 ng from the C ttysha 11 be deemed in material breach of the agreement. The City shall thereupon be entitled to commence 1 itigationin any court of competent jurisdiction for thereeovery of all of said cosh. In the event of such litigation, the city shall be further entitled to the recovery of its attorney fees and legal costs reasonably incurred thereln. c. Property owner(s) shall indemnify and hold harmless City, Clty's Engineer, and thei,r consultants and each of their officials, direct(lrs, officers, agents, and employees from and agalnst all 11ablllty, claims, damages. losses; expenses, and other costs, i nc 1 udl ng costs of defense and attorney' sfees, ari sing out of or resulting from or in connection with the performance of the work, both on and off the job-site, and durlng and after completion, provided that any of the foregoing: 1) 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'inpart by any act or omission of property owner, any contractor, any 'subcontractor, any supplier. anyone directly or indlrectly employed by any of them, or anyone for whose acts or omissions any of them 'may he llable. Nothing ln the Agreement, the specifications or other contract documents or Clty's approval of the plans and specification acknowledgment of a responsibility for any such matter, and City, City's Engineer. and their consu1tants,and all<h if their offiCials. directors" officers, employees, and agents, sha 11 have absolutely no responsibil ity or 1 iabil i ty therefor. d. If City ls required to niakenecessary 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 owners without any warranty of workmanship. Said repair shall be guaranteed and indemnified by property owner ln accordance with subparagraph (e). 9. COVENANT RUNNING WITH lAND. This Agreement shall be deemed and is intended to run with the land and be, a restrtctton upon said property, shall be binding upon and inure to the benefit of the undersigned, his/her/their heirs, personal representatives, successors and assigns, forever or until such -5- tlme as the said plate road shall be dedicated, t~d accepted for use as a public street or t oughfare by municipal governni;ii'r'lawfully exerc; sing jurisdiction over said private road. 17 10. RECORDING OF AGREEMENT. It is the purpose of the signators hereto '08;: that th.is instrument be recorded to the end and intent that the obligation hereby .createdshall be a restriction upon' ,and shall be secured by the said property and any- ,subsequent transferee thereof, by acceptance of delivery of a deed and/or conveyance of the said property 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 enforce the restriction therein cre'ated, such remedy to be cumulative and in additlon to all other remedles at Taw' or in equity. 11. SUBSEOUENT USERS. In the event that a party (parcel) not originally contemplated by this Agreement gains access to said private road, that party (parcel) shall be required to subscribe to th.is Agreement. Should any parcel contemplated by this Agreement be split into multipre parcels (two or more) each newly created parcel shall thereupon be obliged under this Agreement and incur its portion of maintenance costs as set forth by the point system, h . . y. ereln. .'.. . ' IN WITNESS WHEREOF, the parties hereto have executed thls Agreement on the dates set forth hereinafter: Tax Assessor's Number Date OWNERS STI}.JI,JI5l-A-ki R ffTL/ a. Type or P?1 ' e (~~:, ""t,ki ""i",~2 _ f (Notary Acknowledgment attached) (Each owne~n on Grant Deed must sign) 07 06 () r;l 7. / Tax Assessor's Number Date ~/(/ OWNERS gltNrJ Lift.; 12 ~TYGz. !/A7YO ::yorp~ ,_ . " j) Type or Print "7 (NotarY Acknowledgment attached) (Each own I" sho n on Grant Deed must sigll) ACCEPTED: CITY OF POWAY By Crry fffNGINefG'1<-. Appr: ved /~ fO:m' ~~.~a(~ Ci y'orney {/ -6- c. 6083 CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT ISS Cb Sfc,-,vJeC{CL- ~ I d ~ vel- 2n e instrument , ~-.,----------~ e- VANESSA CASTANEDA Commission 1/1194850 i " Nota,y Public - California ~ j San Diego County t ' , My"Canm,~Aug29,2002 -- .- ,- - ,- -- -- ..;, - "- ~..;. -- This area for.offiCiahlotariaJ se-al. Signature OPTIONA}i, - Though the iiifqrmation-below,is npt'required bv-.[ilw,.it,may prov~,valuab'te'topersons reiying on the document and could prevf!.nifr(iuduleil/ removal and reattachment ofthisform.fo-another document. DESCRIPTION OF ATTACHED DOCUMENT Title or Type of Document: Document Date: Number of Pages: ." ',,, Signer(s) other than named above '.. ,. I '. 1,<1 "" CAPACITY(IES). CLAIMED BY SIGNER(S) CORPORATE OFFICER(S) TITLE(S) PARTNER(S)- [ ] LIMITED [ 1 GENERAL ATIORNEY,IN,FACT TRUS'rEE(S) Right Thumbprint ofSfgner [ [ 1 INDIVIDUAL ] CORPORATE OFFICER(S) TITLE(S) P ARNER(S), [ ] LIMITED [ l, 'i'I!.NERAL ATIORNEY'IN'FACT TRUSTEE(S) GUARDIAN OR CONSERVATOR OTilER Right Thuin~print of Signer INDIVIDUAL GUARDIAN OR CONSERVATOR OTHER SIGNER IS REPRESENTING: .. . . 6084 EXHIBIT A 17030 Edina Court Parcel 1 of Parcel Map No 17310, in the City of Poway, County of San Diego, State of California, filed in the Office of the County Recorder of,San Diego County, February 23, 1994 Reserving therefrom an easement',and right-of-way for road and public purposes over, under, along and across that portioo designated "Reserved Private Road Easement" on said Parcel Map, 170-35 Edina Court Parcel 2 of Parcel Map No 17310, in the City of Poway, County of San Diego, State of California, filed in the Office,of the CountyRecorder of San Diego County, February 23, 1994 Reserving therefrom an easement and right-of-wayfbr road and public purposes over, under, along and across that portion designated "Reserved Private Road Easement" on said'Parcel Map, , , , . . . 6083 EXHIBIT B Road Description -- Edina Court An easement and right"of-way for road and public utility purposes over, under, along and across that portion of Parcel Map No 10823, in the,City of Po way , County of San Diego, State of California, filed in the 'office of the County Recorder of San Diego County, December 18, 1980, lying within the area delineated and designated ihereon as "Proposed 40-Foot Private Road Easement."