Private Road Maintenance Agreement 1997-0612855
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126 DOCJ 1997-0612855.
DEe 04. 1997 12:42 PM
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RECORDING REQUFSfED BY:
City of Poway
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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:
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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,
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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
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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:
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. (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
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Approved a~/form:
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City Attorney
Date
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. C~LI'FORNIA ALL-PURPc!E ACKNOWLEDGMENT
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State of California I
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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'..'..
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~ WITNESS my hand and official seal.
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~ 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
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~ Signer's Name: Signer's Name:
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~ 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: ~
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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.
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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
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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
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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'
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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.