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Private Road Maintenance Agreement 1997-0612855 - . . 126 DOCJ 1997-0612855. DEe 04. 1997 12:42 PM ~ " RECORDING REQUFSfED BY: City of Poway \ ~~ OFFICIAL RECffiDS SAN DIEGO COlM'V RECORDER'S OFFICE IMGORV J. SMITH, COliITV Ii'ECORDER FEES: 31.00 AND WHEN RECORDED MAIL TO: City Clerk City of Poway P.O. Box 789 Poway, CA 92074-0789 I1111I1111II1111111111 11~1]'1~~ IIIIIIIIIII~IIIIIIII~ This space for Recorder's use PRIV A TE ROAD MAINTENANCE AGREEMENT TillS AGREEMENT for the maintenance and repair of that certain private road, the legal description and/or plat of which is set forth in Exhibit A attached hereto and made a part hereof, is entcred into between JA~IES R. KRUEGER AND BETTY JEAN KRUEGER, HUSBAND AND WIFE AS JOINT TENANTS (hercinafter rcferred to as "DEVELOPER") and the City of I'oway (hereinafter referred to as "CITY") for the benefit of futurc subdivision lot owncrs who will usc thc private road cascment (hercinaftcr rcfcrred to as "LOT OWNERS", which shall includc thc DEVELOPER 10 the cxlcnt thc DEVELOPER retains any ownership intercst in any lot or lots). WHEREAS, this agrccment is requircd as a condition of approval hy thc CITY of a subdivision project as dcfined in Scction 21065 of thc Public Rcsourccs Codc; and, WHEREAS, DEVELOPER is thc owner of certain rcal propcrty bcing subdivided and developed as TPM 96-09 that will usc and cnjoy thc bcnefit of said road eascmcnt. A complcte lcgal dcscription of said real propcrty is attached labelcd Exhibit C, and incorporatcd by rcfcrcnce. Said rcal propcrty is hereinaftcr rcfcrrcd to as thc PROPERTY; and, WHEREAS, it is the mutual desirc of thc partics hcreto that said privatc road cascment be maintaincd in a safc and usahlc condition by thc LOT OWNERS; and, WHEREAS, it is thc mutual desirc of the partics hereto to cstablish a method for thc maintcnance and rcpair of said private road cascmcnt and for thc apportionment of the expcnsc of such maintcnancc and rcpair among existing and future LOT OWNERS; and, WHEREAS, thc CITY shall be dccmcd a party hercto with thc right but not thc obligation to enforcc full compliancc with the terms and conditions of this Agrcemcnt; and, WHEREAS, it is thc mutual intcntion of thc partics that this Agrecmcnt constitute a covenant running with the land, binding on cach successivc LOT OWNER of all or any portion of thc propcrty, NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS: . . 127 I. The property benefitted 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. 2, The cost and expense of maintaining the private road easement shall be divided equally among the subdivided parcels created 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 of the herein described parcels ofland are subdivided further, or any additional parcel( s) not originally contemplated by this Agreement gains 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 to the following, unless the consent for additional work is agreed to by a majority vote of the LOT OWNERS owning 100% of the number of parcels, including subdivisions thereof and additions thereto as described in paragraph 3 above. Reasonable and normal road improvement 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, if any, and work reasonably necessary or proper to repair and preselVe the easement for all weather and emergency vehicle road purposes. 5. If there is a covenant, agreement, or other obligation imposed as a condition of subdivision approval to make private road improvements to the private road easement, the obligation to repair 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 the party taking action or party contracting for work which caused the necessity for the extraordinary repair. The repair shall be such as 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 and/or authorized under this Agreement. The parties further agree that the agent may at any time be replaced at the direction ofa majority of the LOT OWNERS, Repair and maintenance work on the private road easement shall be commenced when a majority of the LOT OWNER agree in writing that such work is needed, The agent shall obtain three bids from licenses contractors and shall accept the lowest of said three bids and shall then initiate the work. The agent shall be paid for all costs incurred, Page 2 . . . 128 including a reasonable compensation for the repair and maintenance cost; provided, however, that compensation for the agent's services shall in no event exceed an amount equivalent to 10% of the actual cost of repairs and maintenance perfonned. In perfonning his duties, the agent, as he anticipated the need for funds, shall notifY the parties and each party shall within forty-five (45) days pay the agent, who shall maintain a trustee account and also maintain accurate 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 shall be entitled without further notice to institute a legal action for the collection on funds advanced on behalf of such LOT OWNER in accordance with the provisions of California Civil Code Section 845, and shall be entitled to recover in such action in addition to the funds advance, interest thereon at the 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. 9. Any liability of the LOT OWNERS for personal injury to the agent hereunder, or to any worker employed to make 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 of agent, or any such worker, or of any third persons, 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 costs and expenses of such repairs and maintenance, Each LOT OWNER shall be responsible for and maintain his own insurance, if any. By this Agreement, the parties do not intend to provide for 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 LOT OWNERS agrees to indemnify the others from any and all liability for the injury to him or damage to his property when such injury or damage results from, arises out of, or is attributable to any maintenance or repairs undertaken pursuant to this Agreement. 10. LOT OWNERS shall jointly and severally defend and indemnify and hold hannless CITY, AND CITY'S engineer, and their consultants and each of their officials, directors, officers, agents, and employees from and 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 third persons arising out of or in any way related to the use of, repair or maintenance of, or the failure to repair or maintain the private road easement. Nothing in the Agreement, the specifications or their contract documents or CITY'S approval of the plans and specifications or inspection of the work is intended to include a review, inspection, acknowledgment of a responsibility for any such matter, and CITY, CITY'S engineer, and their consultants, and each of their officials, directors, officers, employees and agents, shall have absolutely no responsibility or liability therefor. II. If in the CITY'S sole judgment said private road easement is not being maintained to standards set forth in paragraph 4 of this Agreement, the CITY may thereupon provide written notice to all LOT OWNERS to initiate repairs or construction within ninety (90) days. Upon failure to demonstrate good faith to make repairs or construction within ninety (90) days, the Page 3 129 . . LOT OWNERS agree that the CITY may make all needed repairs to said road easement and/or construct said road easement to meet the standards set forth in paragraph 4 and to then assess costs to all LOT OWNERS proportionately. The agent shall be responsible for collecting the assessments and ensuring payment to the CITY. If the agent fails to collect the assessments for any reason, the CITY may pursue the remedy provided for LOT OWNERS in paragraph 8 hereof, or any other remedies at law or in equity. 12. If the CITY elects to make necessary repairs in accordance with paragraph 11 above, 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 the land and shall be deemed to be for the benefit of the land of each of the LOT OWNERS and each and every person who shall at anytime own all or any portion of the property referred to herein. 14. It is understood and agreed that the covenants herein contained shall be binding on the heirs, executors, administrators, successors and assigns of each LOT OWNER. 15. 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 and constitute a covenant running with the land and any subsequent Purchaser of all or any portion thereof, by acceptance of delivery of a deed an/or conveyance regardless of fonn, 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 other remedies provided in this Agreement and to all other remedies at law or in equity, 16. The terms of this Agreement may be amended in writing upon majority approval of the LOT OWNERS and consent of the CITY. 17. This Agreement shall be governed by the laws of the State of California. In the event that any of the provisions of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, the validity, and enforceability of the remaining provisions shall not be affected thereby. 18, If the Property constitutes a "Common Interest Development" as defined in California Civil Code Section 1351 (c) which will 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 following 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: Page 4 130 . (a) The Associa., through its Board of Directors,_all repair and maintain the private road easement and shall be deemed the "agent" as referred to in paragraph 7 above. The Association, which shall not be replaced except by amendment to the Declaration, shall reccive no compcnsation for pcrforming such duties. Thc costs of such maintcnancc and rcpair shall bc asscssed against each owncr and his subdivision intcrest in the Propcrty pursuant to thc Declaration. Thc asscssmcnts shall bc dcpositcd in thc Association corporatc account. (b) Thc provIsIOns in thc Dcclaration which provide for asscssmcnt licns in favor of thc Association and cnforccment thcrcof shall superscdc paragraph 8 of this Agrccmcnt in its cntirety. No individual owner shall havc the right to altcr, maintain or repair any of the common Arca (as defincd in California civil code Scction 1351 (b) in the Property exccpt as may bc allowed by the Declaration. (c) This Agrcemcnt shall not be interpreted in any manncr which rcduces or limits thc Association's rights and duties pursuant to its Bylaws and Declaration. IN WITNESS WHEREOF, the partics have cxccuted this Agrecment on the datcs sct forth hercinaftcr: Tax Assessors Number 323-071-15-00 DateNovember 8. 1997 Owners James R. Krueger Type or Print Betty Jean Krueger Type or Print (Notary Acknowledgement attached) sign) (Each owner shown on Grant Deed must ACCEJ7fED: CITY OF POW A Y By --7--Y2~ s: ~ Date~~~/~7 Approved a~/form: ~tZ'/,,- City Attorney Date /v,J!/ 12.., /:J~ 7 Page 5 . C~LI'FORNIA ALL-PURPc!E ACKNOWLEDGMENT '5C - ~R:Cr:<"r:c-C::('~.r:cf:<:'r:.cf:C~..r:('~~..p:-.Jt':C~~~r:<-~1' ). Ie' I State of California I ~ On November 0.8,,' 1997 before me, Deborah Lechner ~,.:, ~ N.m. "" Tit" 0' Off"" (..... 'J." 000. No"~ P,"Ii,') ~ I P"'~'''Y ""p""' ,"m" ,. ,",,,.. '"' ,:;,'.'.:...~m ,m,.. I'..'.. I u,--;;;.-u, ~ ~ WITNESS my hand and official seal. ~ _ _ _ _Mf~_~~~'~_ ~ ~ ~ ~ ~ Though the information below is not required by faw, it m~:;~~~~~;'e to persons relying on the document and could prevent ~ ~ fraudulent removal and reattachment of this form to another document. B ~, : Description of Attached Document ~ i Title or Type of Documenl: Private Road Maintenance Agreement ~ I OocumentDate: November 8,1997 Number of Pages: 8 ~ ~ ~::::::;:::;~~,~;::' ::::gne~') 1 ~,'." @ ~ Signer's Name: Signer's Name: ~ ~ 0 Individual 0 Individual ~,' 0 Corporate Officer 0 Corporate Officer ~ Title(s): Title(s): ~ 0 Partner - 0 Limited 0 General 0 Partner - 0 Limited 0 General ~',~ 0 Attorney-in-Fact 0 Attorney-in-Fact o Trustee 0 Trustee o Guardian or Conservator 0 Guardian or Conservator ~ i 0 O<h" "'".- - 0 0'", ~"' '"-"",. : I Signer Is Representing: Signer Is Representing: ~ I: ~ I ~ I _ ~ ",~~~~=~~'(X'~<"~~'C(,'<.)'''', . 131 County of San Diego Ql personally known to me - OR - 0 proved to me on the basis of satisfactory eVidence to be the perso~ whose name@) is~ubscribed to the within instrument and acknowledg9lt!o me that he/she~xecuted the same in his/he~ authOrized capacity les , and that by hls/hefllflei?'pignaturE(@jon the instrument the persorc@, or the ermfy upon behalf of which the perso~ acted, executed the instrument. ~A;;!L~ C 1995 National Notary AssociatiOn' 8236 Remmel Ave., P.O. Box 7184. Canoga P,:irk, CA 91309-7184 Prod. No. 5907 Reorder: Call Toll-Free 1-800-876-6827 . . . . 132 EXHIBIT "A" ROAD MAINTENANCE AGREEMENT LEGAL DESCRIPTION TPM 96-09 A PORTION OF THE SOUTH HALF OF THE NORTHWEST QUARTER OF SECTION 17, TOWNSHIP 14 SOUTH, RANGE I WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF, DESCRIBED AS FOLLOWS: COMMENCING AT SOUTHEAST CORNER OF SAID SOUTH HALF; THENCE ALONG THE EASTERLY LINE OF SAID SOUTH HALF, NORTH 1021'37" WEST, 932.99 FEET TO THE TRUE POINT OF BEGINNING; THENCE RETRACING THE LAST COURSE SOUTH 1"21'37" EAST, A DISTANCE 240.00 FEET, TO THE BEGINNING OF A TANGENT 225.00 FOOT RADIUS CURVE, CONCA VE SOUTHWESTERLY; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 60"00'00", A DISTANCE OF 235.62 FEET; THENCE TANGENT TO SAID CURVE, SOUTH 58038'23" WEST, 111.96 FEET TO A POINT ON THE ARC OF A NON-TANGENT 48,00 FOOT RADIUS CURVE CONCAVE NORTHWESTERLY, A RADIAL LIl\E TO SAID POINT BEARS NORTH 65"19'08" EAST; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 37015'21 ", A DISTANCE OF 31.21 FEET; THENCE NORTH 58038'23" EAST, I 18.31 FEET TO THE BEGINNING OF A TANGENT 195.00 FOOT RADIUS CURVE, CONCAVE NORTHEASTERLY; THENCE NORTHEASTERL Y ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 60000'00", A DISTANCE OF 204.20 FEET; THENCE TANGENT TO SAID CURVE, NORTH 1"21'37" WEST, 142.00 FEET TO THE BEGINNING OF A TANGENT 28.00 FOOT RADIUS CURVE, CONCAVE WESTERLY; THENCE WESTERLY ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 90"00'0", A DISTANCE OF 43.98 FEET; THENCE TANGENT TO SAID CURVE, SOUTH 88"38'23" WEST, 17.00 FEET; THENCE NORTH 1021'37" WEST, 20.00 FEET; THENCE NORTH 88038'23" EAST, 17.00 FEET TO THE BEGINNING OF A TANGENT 28.00 FOOT RADIUS CURVE. CONCA VE NORTHERL Y; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 90000'00", A DISTANCE OF 43.97 FEET; THENCE NORTH 1"21'37" EAST, 22.00 FEET; THENCE NORTH 88"38'23" EAST, 30,00 FEET TO THE POINT OF BEGINNING. As more particularly shown on Exhibit "B" attached hereto and by this reference made a part hereo f ~~- J!, CJ-t- / r7-zl-17 WILLIAM c. YEN, RCE 33730 EXPIRES: 6-30-98 , --~-- , , o o N " w -" < U tJ) , , ~ ~ LEGEND: KXX(1 INDICATES AREA BEING MAINTAINED LINE/CURVE DATA NO. BEARING/DELTA RADIUS LENGTH 1 N1'21'37"W 240.00' 2 60'00'00' 225.00' 235.62' 3 N58' 38'23" E 111.96' 4 3715'21" 48.00' 31.21 ' 5 N58'38'23"E 118.31' 6 60'00'00" 195.00' 204.20' 7 N1'21'37"W 142.00' 90'00'00" 28.00' 43.98' N88'38'23"E 17,00' Nl'21'37"E 20.00' N1'21 '37"E 22,00' N88'38'23"E 30.00' Ao N& m'll'E )- < s ,p GARDEN '" :C ::. ~ ~ Sri o ?J ROAD o w< ",0 0'" ::>z <0 u)- )-z tJ)< U w ii' '" u is o w z CINCHRING DR VICINITY MAP NO SCALE W09704\PVESMTRD.DWG C I T Y I \ , I , I , I I I I ( / / CTR SEC 17 ----/ POINT OF COMMENCEMENT 133 NE-jJ4 NW-jJ.4 SEC -17 u-ru PCL 4 PCL 'A' OF POWJ-\Y TPM ~/@ @ ,,'\,~ " \ , \ h '\1\ \ \ ( ~,--- " <:PCL 3@.___/ ~--(f;;/ PCL 2 ------" PCL 1~ \ @.~ N28'03'47"E(R) " --- \ '.Z \U /' /' /' \)~ /' .Ie, /' ,,<<-"- yo /' \"'S-/' S- /' 86-08 , , &,. / \5!.I'--.... \ \ I I I j\;JAp 770-J I , I , , ",@ w '" '" '" "' "' z PCL 'S' , I .------I ---- - ---- GRAOEN ROAD EXHIBIT" B" NW-J/4 NE-jJ .4 SEC}/4 POINT OF BEGINNING I I I I I , , I , , , I ~ U Lei U) \ I \ II 1\ \\~ I '\2J ,I I, " , "r :::, Lei :z: "t --- ~ > >- U) , , , , '" \ O'! \ N \ ,.., \ :----Yj) " 'i--- 'e> N z . . . fj4 EXHIBIT "C" LEGAL DESCRIPTION THAT PORTION OF THE SOUTH HALF OF THE NORTHWEST QUARTER OF SECTION 17, TOWNSHIP 14 SOUTH, RANGE I WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF POW A Y, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF, DESCRIBED AS FOLLOWS: BEGINNING AT SOUTHEAST CORNER OF SAID SOUTH HALF; THENCE ALONG THE SOUTHERL Y LINE OF SAID SOUTH HALF, NORTH 89017'37" WEST, 450.00 FEET; THENCE NORTH 0042'23" EAST, 103.00 FEET; THENCE NORTH 57"10'00" EAST, 250.00 FEET; THENCE NORTH 31032' 15" WEST, 550.0 FEET; THENCE SOUTH 58027"45" WEST. 65.00 FEET; THENCE NORTH 40032'15" WEST, 610.00 FEET; THENCE NORTH 35025'35" WEST, 288.35 FEET TO THE NORTHERLY LINE OF SAID SOUTH HALF; THENCE ALONG SAJD NORTHERLY LINE NORTH 89028'03" EAST, 1112.49 FEET TO THE EASTERL Y LINE OF SAID SOUTH HALF; THENCE ALONG SAlD EASTERL Y LINE. SOUTH }021'26" EAST, 1388.14 FEET TO THE POINT OF BEGI!\'NING.