Private Road Maintenance Agreement 1997-0468985
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RECORDING REQ_TED BY:
SOUTHLAND TITLE ~AN DIEGO
1399
City of Po way
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DOC n 1997-0468985
SEP 23. 1997 4:02 PM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
GREGORY J. SMITH, COUNTY RECORDER
FEES: 31. 00
RECORDING REQUESTED BY:
,
AND WHEN RECORDED MAlL TO:
City Clerk
City of Po way
P.O. Box 789
Poway, CA 92074-0789
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PRIVATE ROAD MAINTENANCE AGREEMENT
THIS 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 entered into between PAUL W. GRIMES AND CAROL M. GRIMES, AS TRUSTEES FOR
THE GRIMES FAMILY TRUST DATED MARCH 10, 1989 (hereinafter referred to as
"DEVELOPER") and the CITY OF POW A Y (hereinafter referred to as "CITY") for the benefit
of future subdivision lot owners who will use the private road easement (hereinafter referred to as
"LOT OWNERS", which shall include the DEVELOPER to the extent the DEVELOPER retains
any ownership interest in any lot or lots).
WHEREAS, this Agreement is required as a condition of approval by the CITY of a
subdivision project as defined in Section 21065 of the Public Resources Code; and,
WHEREAS, DEVELOPER is the owner of certain real property being subdivided and
developed as TPM 89-12 that will use and enjoy the benefit of said road easement. A complete
legal description of said real property is attached labeled Exhibit C, and incorporated by reference,
Said real property is hereinafter referred to as the PROPERTY; and,
WHEREAS, it is the mutual desire of the parties hereto that said private road easement be
maintained in a safe and usable condition by the LOT OWNERS; and,
WHEREAS, it is the mutual desire of the parties hereto to establish a method for the
maintenance and repair of said private road easement and for the apportionment of the expense of
such maintenance and repair among existing and future LOT OWNERS; and,
WHEREAS, the CITY shall be deemed a party hereto with the right but not the obligation
to enforce full compliance with the terms and conditions of this Agreement; and,
WHEREAS, it is the mutual intention of the parties that this Agreement constitute a
covenant running with the land, binding upon each successive LOT OWNER of all or any portion
of the property, 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 of land 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 perfonned 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 nonnal 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 preserve 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
of a 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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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"10 of the
actual cost of repairs and maintenance perfonned. In performing 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.
I I . 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 form, 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 Association, through its Board of Directors, shall 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 receive no
compensation for performing such duties. The costs of such maintenance and repair shall be
assessed against each owner and his subdivision interest in the Property pursuant to the
Declaration. The assessments shall be deposited in the Associations corporate account.
(b) the provisions in the Declaration which provide for assessment liens in favor of the
Association and enforcement thereof shall supersede paragraph 8 of this Agreement in its entirety.
No individual owner shall have the right to alter, maintain or repair any of the common Area (as
defined in California civil code Section 1351 (b) in the Property except as may be allowed by the
Declaration.
(c) This Agreement shall not be interpreted in any manner which reduces or limits the
Association's rights and duties pursuant to its Bylaws and the Declaration.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set
forth hereinafter:
Tax Assessors Number .3 Z /- 03/-24
Date
7/1."Z-/ q 7
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Owners AU L W.
Type or Print
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SIgnature
(Notary Acknowledgement attached)
(Each owner shown on Grant Deed must sign)
ACCEPTED:
CITY OF POW A Y
By -77J~ )5: N~
Date
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Approved as to form:
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Date
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CA~IF;ORNIA ALLoPURPol ACKNOWLEDGMENT
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State of California
County of San Diego
On July 22, 1997
Date
before me, Berta B. Alexander, Notary Public
Name and Tille of Officer (e.g., "Jane Doe, Notary Public")
personally appeared Paul William Grimes and Carol Ann Marie Grimes ------------
Name(s) of Signer(s)
o personally known to me - OR -XXproved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) .isfare subscribed to the within instrument
and acknowledged to me that heI6Ae/they executed the
same in hislRer/their authorized capacity(ies), and that by
ht5Ifler/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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WITNESS my hand and official seal.
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OPTIONAL
Though the information be/ow is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Private Road Maintenance Agreement
Document Date:
July 22, 1997
Number of Pages:
5
Signer(s) Other Than Named Above:
None
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
~ Trustee
o Guardian or Conservator
D 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 of :humb here
RIGHT THUMBPRINT
OF SIGNER
Signer Is Representing:
Signer Is Representing:
Grimes Family Trust
Dated March 10, 1989
C 1994 National Notary Association' 8236 Remmel Ave., P.O. Bolt 7184' Canoga Park, CA 91309-7184
Prod. No. 5907
Reorder: Call Toll.Free 1-800-876-6827
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EXHJI~"Q.5
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, ROAD MAINTENANCE AGREEMENT
LEGAL DESCRIPTION
TPM 89.12
COMMENCING AT THE SOUTHEAST CORNER OF PARCEL 4 OF PARCEL MAP 10211
IN THE CITY OF POW A Y, COUNTY OF SAN DIEGO, ST ATE OF CALIFORNIA,
RECORDED IN THE OFFICE OF THE RECORDER OF SAN DIEGO COUNTY ON JULY
10,1980 IN BOOK OF PARCEL MAPS AT PAGE 10211, THENCE; NORTH 00'46'26"
EAST ALONG THE EASTERLY LINE OF SAID PARCEL 4, A DISTANCE OF 536.90
FEET, THENCE; LEAVING SAID EASTERLY LINE NORTH 89'13'34" WEST, 218.57
FEET TO THE TRUE POINT OF BEGINNING, THENCE; SOUTH 00'46'26" WEST, 9.17
FEET TO THE BEGINNING OF A TANGENT 56.00 FOOT RADIUS CURVE CONCAVE
NORTHERLY A RADIAL TO SAID POINT OF BEGINNING BEARS NORTH 18'35'23"
WEST, THENCE; SOUTHERLY, EASTERLY AND NORTHERLY ALONG THE ARC OF
SAID CURVE THROUGH A CENTRAL ANGLE OF 247'32'11" A DISTANCE OF 241.94
FEET TO THE BEGINNING OF A REVERSING 22.00 FOOT RADIUS CURVE CONCAVE
SOUTHERLY, THENCE; NORTHERLY AND EASTERLY ALONG THE ARC OF SAID
CURVE THROUGH A CENTRAL ANGLE OF 116'06'09" A DISTANCE OF 44.58 FEET TO
THE BEGINNING OF AT ANGENT 99.65 FOOT RADIUS CURVE CONCAVE
WESTERLY, THENCE; SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A
CENTRAL ANGLE OF 60'19'33" A DISTANCE OF 104.92 FEET, THENCE; TANGENT TO
SAID CURVE SOUTH 1'53'06" WEST, 277.51 FEET TO THE BEGINNING OF A
TANGENT 86.00 FOOT RADIUS CURVE CONCAVE NORTHWESTERLY, THENCE;
SOUTHERLY AND WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A
CENTRAL ANGLE OF 72'24'15" A DISTANCE OF 108.68 FEET, THENCE, SOUTH
74'11'42" WEST, 3U8 FEET, THENCE; NORTH 88'11'25" WEST, 19.05 FEET, THENCE;
NORTH 75'44'13" WEST, 19.81 FEET, THENCE; NORTH 78'02'13" WEST, 36.10 FEET,
THENCE; NORTH 78'06'07" WEST, 2707 FEET, THENCE; SOUTH 63'54'12" WEST,
41.35 FEET, THENCE; SOUTH 69'52'01" WEST, 31.92 FEET, THENCE; SOUTH 72'32'30"
WEST, 24.27 FEET, THENCE; NORTH 84'44'07" WEST, 30.67 FEET, THENCE; NORTH
70'04'35" WEST, 148.12 FEET, THENCE; SOUTH 20'17'21" EAST, 54.07 FEET, THENCE;
SOUTH 70'04'35" EAST, 175.09 FEET, THENCE; NORTH 74'1 1'42" EAST, 320.95 FEET,
THENCE; NORTH 00'46'26" EAST, 497.39 FEET, THENCE; NORTH 89'13'34" WEST,
193.57 FEET TO THE TRUE POINT OF BEGINNING.
As more particularly shown on Exhibit "B" attached hereto and by this reference made a part
hereof
Print Name
Expiration Date:
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EXHIBIT "e" LcGt,L DESCRIPTION
PARCEL A:
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Parcel 4, as shown on a Parcel Map filed in Book of Parcel Maps at Page 10211, in the
Office of the County Recorder of San Diego County on July 10, 1980, being a portion of
the Southeast Quarter of the Northeast Quarter of .Section 6, Township 14 South, Range
'1 West, San Bernardino Meridian, in the City of Poway, County of San Diego, State of
California, according to United States Government Survey.
EXCEPTING that portion more particUlarly described as follows:
Beginning at the Northwest corner of said Parcel 4 of Parcel Map 10211; thence
Southerly along the Westerly line of said Parcel 4, South 14009'45" East 463,36 feet to
the Northeast corner of Parcel 3 of said Parcel Map 10211 being the TRUE POINT OF
BEGINNING; thence continuing Southerly along said Westerly line 375.09 feet to the
Southwest corner of said Parcel 4, Parcel Map 10211 being also the Southeast corner of
said Parcel 3; thence, South 70004'35" East 52.43 feet along said Southerly line
thereof; thence leaving said Southerly line, North 20017'23" West 406.80 feet to the
TRUE POINT OF BEGINNING,
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